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BY  RIGHT  OF 
SWORD: 


A  Defense  of  Capital-Pumshment, 

Based  on  a  Searching  Examination  of 

History,  Theology,  and  Philosophy 

by 

Leigh  H.  Irvine 


Though  not  so  pleasant,  punish- 
ment is  as  necessary  as  reward. 
It  is  as  important  to  hang  some 
men  as  to  honor  others. — E.  W. 
Howe. 

•jLIFpRNIA  SAN  DIEGO 


3  1822  01600  1265 

COPYRiaHT,    1916.    BY    LEIGH    H.    IRVINHJ. 


New  York: 
THE  BAKER  &  TAYLOR  CO. 
Trade    Selling   Agents. 

1915. 


I\ 


Digitized  by  tine  Internet  Arciiive 

in  2007  witii  funding  from 

IVIicrosoft  Corporation 


littp://www.arcliive.org/details/byriglitofsworddeOOirviiala 


SYNOPSIS 

Bee  Index  at  back  of  book  for  more  definite  references. 

Chapter  I. 

Preface — Condensed  arguments — A  campaign  of  blunders,  for- 
warded by  anarchists,  etc. — Super-sensitive  persons  of  religloua 
cults  and  others  would  destroy  the  ancient  law — Historical  failure 
of  the  doctrine  of  non-resistance — Tolstoy  a  dreamer — Great  Bib- 
lical commentators  show  misapplication  of  Biblical  quotations  by 
friends  of  misplaced  lenity — Hebrew  and  Greek  texts  considered 
and  analyzed — Ludgate  and  Charing  Cross — Beccaria,  Romilly, 
Bentham — The  modern  campaign  agamst  the  hangman  based  on 
emotional  upsets — Herbert  Spencer  and  Sir  Leslie  Stephen  show 
absurdity  of  "weeping"  codes  against  murderers — Ex-President 
Taft  stoutly  favors  the  use  of  hemp  for  cold-blooded  murderers — 
Fundamentals  of  problem  ignored  by  the  hysterical  crusaders  for 
soft  laws — Analysis  of  the  philosophy  of  punishment — Paddism  con- 
demned by  Professor  Peabody — Ethical  and  legal  standards  vindi- 
cate elimination  of  the  murderer  by  one  merciful  stroke — Criminal 
responsibility  and  the  "fate"  theory  of  tears  and  pity — Scandina- 
vian pre-Christian  laws  against  murder  considered — Chancellor 
Kent  and  Daniel  Webster  justify  capital-punishment — British  com- 
mission studies  question  and  retains  capital-punishment — Eminent 
jurists  favor  the  annihilation  of  wild  beasts  of  men — In  practice 
there  Is  no  such  thing  as  life  imprisonment — Real  confinement  re- 
sults in  insanity  or  death — Parole  and  pardon  free  murderers  who 
become  recidivists — Grotlus  and  his  views  of  the  subject — Emerson 
against  "whining  doctrine  of  love"  for  the  wicked — Certainty  of 
the  death  penalty  the  greatest  deterrent  of  murder — In  England 
"hemp  follows  the  crime"  and  England's  murders  decrease — Amer- 
ica a  land  of  murderers  because  of  uncertainty  of  adequate  punish- 
ment— Gallows  restored  In  FYance  and  Colorado  after  failure  of  Its 
abolition  and  increase  of  crime — Annals  of  San  Francisco  shows 
how  drastic  use  of  death  penalty  cleared  the  city  of  murderers,  etc. 
Chapter  n. 

Draconian  Codes  Justified — Five  arguments  agrainst  the  gallows 
summarized  and  answered  by  Encyclopedia  Britannica — Maudsley 
and  McConnell  on  fallacy  of  reforming  murderers — Spencer  on  evils 
of  life  terms — Long  Imprisonment  worse  than  death — Society's  right 
to  take  life — All  encyclopedias  justify  gallows — Ethical  justification 
of  death  penalty — Codes  for  angelic  men  fail  in  our  practical  world 
— Spencer  showa  fallacy  of  doctrine  of  non-resistance — Ultra-mun- 
dane and  superhuman  codes  always  fail — Tolstoy's  theory  col- 
lapses— Early  Christians  had  to  abandon  soft  codes — Plato  and 
Aristotle  justify  punishment — Ethical  theories  analyzed — Absolute 
and  relative  ethics — Sir  Leslie  Stephen  favors  gallows — His  argu- 
ment stated. 

Chapter  III. 

The  philosophy  of  punishment — Eminent  Catholic  authorities 
justify  capital  punishment — Their  reasoning  In  details-Great  Har- 
vard professor  on  objects  of  punishment— nRetrlbutlon,  deterrence, 
etc. — Social  defense — Reformation — Fundamentals  set  forth  and 
analyzed  In  detail.  This  is  an  exhaustive  chapter. 
Chapter  rv. 

Christianity  justifies  the  death   penalty.     This  Is  a   long  and 
thoroughly   reasoned    chapter,    full    of   vital    Interest.      Its  clinching 
arguments  can  not  well  be  presented  In  a  summary. 
Chapter  V. 

This  chapter  adds  many  Interesting  contributions  to  the  sub- 
ject, showing  the  failure  of  abolition  wherever  tried — District 
attorneys  of  Minnesota  meet  In  convention  and  petition  the  Leglsla- 
tur«  for  restoration  of  death  penalty. 


The  Book  and  Its  Purpose 

THIS  Volume  is  a  frank  and  uncompromising  de- 
fense of  capital-punishment  for  the  deliberate 
and  inexcusable  murderer,  duly  convicted  after  a  clear 
and  unmistakable  case  against  him.  It  challenges 
every  contention  of  those  who  would  substitute  the 
so-called  law  of  love  (in  his  case)  for  the  law  of  force. 

The  author,  formerly  a  lawyer  and  a  writer  on  law 
subjects,  but  for  many  years  engaged  in  journalism 
and  authorship,  has  had  a  wide  experience  with  crim- 
inals, courts,  and  prisons.  Furthermore,  he  has  de- 
bated the  question  of  capital-punishment  on  many  pub- 
lic platforms  and  in  the  columns  of  newspapers  and 
magazines  during  a  period  of  twenty  years.  Let  this 
answer  the  pardonable  question  as  to  his  qualifications 
to  speak  on  so  important  a  subject.  He  deems  the 
time  ripe  for  a  thorough  analysis  of  the  fundamentals 
underlying  the  entire  problem  of  punishment  as  appli- 
cable to  the  murderer.  It  is  the  solemn  duty  of  every 
voter  to  analyze  this  question  in  order  that  he  may 
express  his  opinion  intelligently,  especially  in  states 
where  the  initiative  and  referendum  prevail. 

Consider  the  case  of  the  cold-blooded  murderer — the 
secret  poisoner,  the  hired  assassin,  the  wretch  who  de- 
liberately destroys  human  life  for  cruelty,  for  revenge, 
or  for  gain.  What  valid  plea  can  be  made  for  such 
a  scoundrel's  life?  Why  should  he  cumber  the  earth 
and  pollute  it  with  his  wickedness?  Why  should  hon- 
est men  feed  and  clothe  him,  or  make  the  hopeless  at- 


A  DEFENSE  OF  CAPITAL-PUNISHMENT      5 

tempt  to  mold  him  anew?  What  man  whose  wife  or 
daughter  died  at  his  hands  would  abolish  the  hemp  in 
his  ease?  And  why  should  the  state  forego  the  an- 
cient sacrifice,  since  all  history  justifies  it? 

Every  argument  from  the  deep  antiquity  of  human 
experience,  every  ethical  canon,  every  commandment 
of  religion,  and  every  motive  for  the  protection  of 
society  demands  the  elimination  of  the  deliberate  mur- 
derer by  the  gates  of  death.  The  penalty  that  ends 
his  life  is  still  the  sovereign  remedy  for  the  wild  beast 
of  a  man  who  follows  in  the  footsteps  of  the  Cains  of 
history.  Society  is  safest,  and  is  safe  only  when  such 
degenerates  are  speedily  returned  to  the  dust  whence 
they  sprang. 

For  the  armed  assassin,  the  garroter,  the  wielder  of 
the  midnight  bludgeon,  the  coward  who  sheds  the 
blood  of  his  innocent  and  defenseless  victim,  there  can 
be  no  defense.  The  gallows,  as  Sir  Leslie  Stephen 
concludes  in  his  masterful  work  on  ethics,  is  the  only 
argument  against  the  assassin  who  uses  either  knife 
or  club  in  the  darkness,  who  stabs  and  robs  his  sleep- 
ing victim,  or  violates  and  strangles  young  women  in 
secret  places.  As  well  try  to  reform  hell  itself  as  the 
character  of  the  inhuman  monster  who  brutally  slays 
his  fellow  man.  That  depraved  murderers  are  beyond 
reform  is  proved  by  the  history  of  every  penitentiary 
where  the  experiment  has  ever  been  tried, 

A  Lucchesi,  released  from  prison  as  reformed,  after 
finishing  his  second  term  for  murder  in  Italy,  promptly 
selects  and  slays  as  his  third  victim  the  most  brilliant 
editor  of  Leghorn,  who  had  helped  to  convict  him,  an-i 
whom  he  had  sworn  to  murder;  the  prime  minister  of 
Greece  (Delyanni)  is  brutally  slain  by  Gherakaris, 
who  had  just  been  set  free  as  reformed,  after  serving 


6  BY  RIGHT  OP  SWORD 

a  short  term  for  butchering  his  wife ;  an  Italian  assas- 
sin travels  to  a  Swiss  canton  in  which  the  death  pen- 
alty has  been  abolished,  in  order  to  kill  the  Empress 
of  Austria;  a  Spido  travels  from  drastic  France  to 
lenient  Belgium  to  start  his  assassination  plans  against 
King  Edward  VII,  then  prince  of  Wales;  and  the 
county  attorneys  of  Minnesota  (1912),  weary  of  that 
State's  farcical  life  imprisonment  law  for  murder,  pe- 
tition the  Legislature  to  restore  capital-punishment. 
Such  is  the  history  of  reform,  such  the  harvest  of  a 
mistaken  policy  of  lenity  in  the  presence  of  the  slay- 
ers of  men ! 

No  wonder  that  the  learned  and  gentle  Andrew  D. 
White,  when  president  of  Cornell,  said  that  society 
was  obliged  to  fall  back  on  the  law  of  self-preserva- 
tion, and  "cut  through  for  its  life,  since  life  impris- 
onment is  impossible,  because  there  is  no  life  imprison- 
ment," the  average  life  term  being  less  than  seven- 
teen years,  even  if  not  cut  shorter  by  pardons  or  pa- 
roles. 

To  return  fiendish  murderers  to  their  freedom,  un- 
der any  pretext  or  for  any  purpose,  is  a  grave  injury 
to  the  innocent  members  of  society,  who  are  endan- 
gered by  their  presence,  both  by  reason  of  the  fre- 
quency of  relapse  and  by  the  ease  with  which,  disre- 
garding all  moral  and  legal  ties,  they  multiply  and 
replenish  their  kind;  to  permit  them  to  associate  with 
other  prisoners,  is  to  corrupt  the  entire  penitentiary 
and  jeopard*  the  lives  of  other  convicts,  as  well  as 
the  lives  of  the  prison  guards;  to  place  them  in  sol- 
itary cells  is  to  kill  them  by  insanity  and  slow  tor- 
ture, a  method  unspeakably  cruel  in  comparison  with 
elimination  by  one  merciful  stroke,  which  penalty  was 


♦The  verb  is  preferred  to  Jeopardize,  which  has  been  chal- 
lenged by  the  masters  of  our  speech. 


A  DEFENSE  OF  CAPITAL-PUNISHMENT      7 

indorsed  (for  extreme  cases)  by  Lombroso  himself,  the 
prime  authority  upon  whom  the  abolitionists  lean  for 
support. 

To  prove  the  validity  of  the  contentions  herein  set 
forth,  is  the  purpose  of  the  pages  that  follow.  Bibles 
and  creeds,  prelates  and  philosophers,  the  wisest  and 
best  of  mankind  have  adopted  capital-punishment  as 
the  only  logical  remedy  for  the  awful  crime  of  delib- 
erate and  inexcusable  murder — the  killing  of  a  human 
being  for  base  revenge,  out  of  malice,  or  for  any  other 
of  the  wicked  motives  that  are  costing  an  increasing 
number  of  innocent  lives.  The  author  has  re-examined 
the  foundations  of  learning,  quoted  from  the  masters, 
and  tried  to  meet  every  issue  face  to  face. 

At  no  time  in  the  history  of  the  United  States  has 
there  been  a  graver  duty  of  citizenship  than  that  which 
confronts  jurors  in  criminal  cases  to-day.  Under  the 
wire-drawn  theories  of  the  super-academic,  an  increas- 
ing number  of  faddists  would  treat  murderers  by  scho- 
lastic theories  of  psychology,  a  method  barren  of  any 
result  save  disastrous  lenity.  A  fast  and  loose  moral 
code,  void  of  punishment,  is  also  void  of  influence. 

Some  of  the  efforts  to  save  the  lives  of  cold-blooded 
murderers  are  based  on  the  argument  that  we  no  longer 
have  men  of  heroic  mold,  loyal  and  courageous  in  sup- 
port of  the  law  of  the  land,  when  it  comes  to  admin- 
istering the  death  penalty,  which  still  obtains  in  most 
of  the  states  of  the  Union.  It  is  said  with  much  truth 
that  it  is  next  to  impossible  to  obtain  juries  that  will 
abide  by  their  solemn  oaths  and  enforce  the  drastic 
law  against  murder.  It  thus  falls  that  fiendish  crim- 
inals are  often  permitted  to  escape  adequate  punish- 
ment, and  that  juries  constantly  bring  in  ridiculous 
verdicts  of  insanity  or  justification — anything,  even  an 


8  BY  RIGHT  OP  SWORD 

obviously  dishonest  failure  to  agree — to  escape  shed- 
ding the  blood  of  the  prisoner,  though  he  be  as  guilty 
as  Nero  and  Caligula. 

"What  is  the  cause  of  this  dereliction  of  duty,  this 
almost  maudlin  regard  for  the  lives  of  degenerates? 
Why  are  American  juries  so  much  more  delinquent 
than  those  of  Great  Britain,  whose  men  are  less  given 
to  crimes  of  violence  than  are  our  own  countrymen? 
Is  it  that  our  people  have  been  frightened  by  the  hue- 
and-cry  of  the  sentimentalists,  who  incessantly  brand 
capital-punishment  as  legal  murder?  Is  it  because  of 
a  fear  that  an  innocent  man  may  die  at  their  hands, 
even  as  innocent  men  have  died  on  battlefields  in  or- 
der that  foreign  invaders  be  repelled  ?  Shall  the  lovers 
of  law  and  order  fold  their  arms  and  permit  the  sen- 
timental crusaders  to  go  unanswered? 

Shall  all  murderers  go  free,  or  be  sent  to  luxurious 
prison-hospitals  because  of  a  possible  judicial  blunder, 
even  though  perpetrated  without  malice,  and  for  the 
protection  of  society  ?  As  well  banish  surgery  because 
one  mistake  of  the  knife,  one  error  in  diagnosis  now 
and  then  sacrifices  a  patient;  or  as  well  abandon 
armies  and  warships,  forts  and  defenses  when  an  in- 
vading foe  appears,  lest  innocent  men  lose  their  lives 
in  order  that  freedom  may  be  preserved. 

The  time  is  ripe  for  courage  and  common-sense.  Let 
the  X-Ray  of  reason  be  applied  to  the  case.  Juries 
may  then  do  their  duty,  and  thousands  of  innocent 
lives  will  be  spared,  every  year,  from  death  at  the 
hands  of  murderers.  If  capital-punishment  is  right, 
it  should  be  enforced  when  required.  The  author  of 
this  volume  believes  that  the  following  pages  contain 
unanswerable  proof  of  the  wisdom  of  the  death  pen- 
alty. 


A  DEFENSE  OF  CAPITAL-PUNISHMENT      9 

In  The  New  World,  by  the  Reverend  Josiah  Strong, 
an  eminent  jurist  is  quoted  as  saying:  "The  taking 
of  life  as  a  penalty  for  high  crime,  by  due  process  of 
law,  and  under  the  most  careful  safeguards,  seems  to 
be  the  only  way  of  taking  life  to  which  the  average 
American  has  any  objections." 

In  American  Problems,  page  77,  Professor  Hugo 
Munsterberg  says  that  disregard  of  law  is  the  most 
dangerous  psychological  factor  in  American  civiliza- 
tion— that  crimes  against  life  are  twenty  times  more 
frequent  than  in  Europe ;  that  in  a  popular  melodrama 
the  sheriff  says  solemnly:  "I  stand  here  for  law"; 
and  when  another  shouts  in  reply,  "I  stand  for  com- 
mon sense,"  night  after  night  the  public  breaks  out 
into  jubilant  applause.  Munsterberg  adds:  "To  fos- 
ter this  immoral  negligence  of  law  by  fabricating 
hasty,  ill-considered  laws  in  a  hysterical  mood,  laws 
which  almost  tempt  toward  a  training  in  a  violation 
of  them,  is  surely  a  dangerous  experiment  in  social 
psychology."  He  was  not  discussing  capital-punish- 
ment, but  his  words  apply  to  the  present  sentimental 
and  hastily  considered  movement  against  it  as  much 
as  to  any  other  ill-advised  agitation  in  the  United 
States. 

LEIGH  H.  IRVINE. 

San  Francisco,  February,  1915. 


Arguments  Condensed  from 
This  Volume 

iilTM^HOSO  sheddeth  man's  blood,  by  man  shall  his 
W  blood  be  shed,"  was  not  repealed  by  Christ. 
The  "Thou  shalt  not  kill"  is  interpreted  by  all  com- 
mentators with  reference  to  certain  logical  and  sane 
exceptions,  viz:  except  in  personal  self-defense,  or  in 
a  just  war  of  defense,  or,  by  sanction  of  the  state; 
for  "He  (the  ruler)  beareth  not  the  sword  in  vain." 
The  sword  is  the  symbol  of  power,  of  just  authority. 
Render  unto  Caesar  the  things  which  are  his. 

We  do  not  slay  man-eating  lions  and  tigers  in  the 
street  because  we  are  cruel,  but  because  either  they 
or  we  must  give  up  the  city.  We  do  not  slay  cunning 
assassins  who  ravish  women  and  disembowel  pedes- 
trians because  we  are  bloodthirsty,  but  because  so- 
ciety is  not  safe  when  they  are  at  large.  We  slay 
them  that  others  may  be  warned  and  deterred  from 
crime. 

Elimination  of  the  wild  beast  of  a  man  by  one  mer- 
ciful stroke  was  justified  by  Lombroso  himself,  the 
one  authority  on  whom  the  abolitionists  lean. 

Non-resistance  and  the  sublimated  doctrine  of  love 
would  leave  the  community  practicing  it  the  prey  of 
any  band  of  murderers  that  cared  to  visit  it.  Not  to 
resist  in  such  a  case  is  a  crime,  and  non-resistance  be- 
comes folly.  As  well  try  to  succeed  among  cannibals 
by  following  a  code  fit  only  for  angels. 

10 


A  DEFENSE  OF  CAPITAL-PUNISHMENT    11 

The  swift  and  certain  execution  of  the  ancient  law, 
punishment  by  a  means  bearing  a  just  proportion  to 
the  enormity  of  the  crime,  is  the  best  deterrent  known. 
Death  is  still  the  king  of  terrors  and  the  only  terror 
that  holds  some  men  in  check. 

Under  the  modem  system  of  pardons  and  paroles, 
turkey  dinners  and  cadet  uniforms,  there  is  in  reality 
no  such  thing  as  life-imprisonment.  The  fiends  are 
often  released,  only  to  commit  more  murders. 

There  is  too  much  loose  talk  about  the  sacredness 
of  human  life.  A  life  is  sacred  only  when  it  makes 
itself  sacred,  when  it  respects  the  lives  and  rights  of 
others.  There  is  nothing  sacred  about  the  fiend  who 
wields  the  midnight  bludgeon  or  who  garrotes  young 
women  in  secret  places. 

Capital-punishment  should  be  abolished,  but  not  un- 
til the  murderers  of  the  world  abolish  it  first. 

The  early  Christians  were  forced  to  abandon  the 
doctrine  of  love  and  non-resistance.  Their  attempt  to 
follow  the  mild  interpretation  is  one  of  the  great  fail- 
ures of  history. 

Romilly  and  the  other  great  prison  reformers  of  his 
time  were  careful  to  preserve  the  gallows  for  treason 
and  murder. 

Before  the  state  took  over  the  punishment  of  mur- 
derers it  was  lawful  for  the  individual  to  slay  the 
murderer  of  his  kin.  The  Scandinavian  pre-Christian 
law  allowed  murderers  to  expiate  for  their  offenses  by 
paying  a  monetary  price,  determined  in  advance  of 
the  crime. 

All  human  experience  shows  that  life-imprisonment, 
so-called,  does  not  become  life-imprisonment  in  fact. 
After  persons  and  situations  have  changed,  or  under 
the  sway  either  of  weak,  corrupt,  or  mistaken  govern- 


12  BY  RIGHT  OF  SWORD 

ors  and  boards  many  murderers  have  been  set  free, 
only  to  become  murderers  again. 

The  taking  of  an  innocent  man's  life  by  judicial 
process,  after  exercising  every  care,  and  hedging  the 
victim  with  countless  safeguards  and  technicalities,  is 
very  rare ;  but  the  taking  of  an  innocent  human  life  in 
this  way,  terrible  as  it  is,  should  not  lead  us  to  turn 
murderers  loose  to  destroy  still  other  innocent  lives, 
or  to  relax  the  terror  of  the  law  as  a  warning  to  evil- 
doers. The  taking  of  an  innocent  human  life  in  a 
just  war  of  self-defense  is  regrettable,  but  necessary. 
The  loss  of  an  innocent  human  life  by  the  slip  of  a 
surgeon's  knife  is  regrettable,  but  we  do  not  therefore 
abolish  surgery.  But  the  deliberate  taking  of  an  inno- 
cent human  life  by  society  might  be  ethically  justified 
if  such  a  sacrifice,  for  example,  would  save  a  multi- 
tude of  other  human  lives.  This  conclusion  has  been 
unanswerably  worked  out  by  ethical  classes  in  a  score 
of  great  universities. 

There  is  altogether  too  much  teaching  and  preach- 
ing that  governments  are  mainly  responsible  for  every 
man's  faults.  As  soon  as  a  young  man  begins  to  im- 
agine that  he  is  a  helpless  victim  of  the  ages,  a  crea- 
ture ensnared  by  environment  and  doomed  to  defeat, 
his  case  is  next  to  hopeless.  Why  this  cult  that  so- 
ciety alone  makes  one  man  a  thief,  his  brother  an 
honest  gentleman?  The  New  York  World  recently 
(1914)  stated  the  case  forcibly  when  it  said  that,  de- 
spite low  wages  and  other  injustices,  no  self-respecting 
young  woman  can  expect  to  be  excused  for  lack  of 
chastity  on  the  plea  that  while  a  virtuous  career  is 
possible  at  $9  a  week,  a  drop  of  $1  on  her  weekly  wage 
justifies  her  lapses. 

Ex-President  Charles  W.  Eliot  of  Harvard  is  re- 


A  DEFENSE  OF  CAPITAL-PUNISHMENT    13 

ported  in  the  New  York  Times  of  October  27,  1913,  as 
saying:  "One  reads  frequently  that  the  cause  of 
immorality  and  prostitution  is  the  failure  of  employers 
to  pay  *a  living  wage.'  Must  the  church  stand  for 
this  doctrine?  It  seems  to  me  a  demoralizing  and 
degrading  doctrine  in  all  its  implications.  Poverty 
is  a  far  safer  condition  than  immoderate  wealth." 

Too  many  men  and  women  indulge  themselves  in 
gushing  sentimentalism  over  criminals.  They  over- 
emphasize the  fact  that  "life,  education  and  environ- 
ment" are  the  forces  that  "victimize  and  penalize 
every  criminal."  This  is  a  half-truth  in  some  in- 
stances, but  no  truth  at  all  in  most  of  the  cases  where 
it  is  invoked  as  a  reason  for  lenity  toward  offenders. 
If  society  is  wholly  responsible,  why  not  apologize  to 
the  cut-throat  and  pension  him  for  life?  If  yon  don't 
hang  him,  why  imprison  him  ?  He  surely  needs  neither 
gallows  nor  cell  if  the  blame  is  all  on  the  universe  at 
large. 

Young  men  and  women  should  bear  in  mind  that 
many  of  the  crooks  of  the  world — burglars,  forgers 
and  murderers — were  born  of  poor  but  honest  parents. 
These  parents  often  bore  other  sons  and  daughters 
whose  careers  were  honorable  and  successful — living 
refutations  of  the  "blame  it  on  the  fates"  doctrine  so 
often  relied  upon  by  theorists  and  sentimentalists. 

If  I  become  a  criminal  and  my  brother  becomes  a 
gentleman  and  a  scholar,  a  dutiful  son,  a  truthful,  use- 
ful citizen  in  the  face  of  poverty  and  cramped  condi- 
tions, in  spite  also  of  the  fact  that  he  was  compelled 
to  associate  with  me  in  his  early  years,  I  am  not  en- 
titled to  sympathy  if  I  blame  society  "as  it  is  now 
constituted"  for  making  me  a  coward  and  a  criminal. 
For  I  had  the  same  parents,  the  same  hardships,  the 


14  BY  RIGHT  OF  SWORD 

same  educational  advantages  that  my  brother  had. 
It  was  not  environment  that  made  me  a  criminal. 
I  am  not  a  warped  victim  of  unjust  social  conditions 
one  iota  more  than  my  brother  is.  If  I  made  the 
wicked  man's  choice  of  the  primrose  path  and  the 
thief's  career,  if  I  forsook  duty  and  preferred  stealing 
to  working,  I  must  not  expect  society  to  weep  over  my 
fate  when  I  am  led  into  a  prison-cell  or  to  a  gallows- 
tree.  In  the  United  Kingdom,  where  criminals  know 
that  the  cell  or  the  hemp  speedily  follows  the  crime, 
there  is  less  crime  than  in  the  countries  where  theorists 
plead  for  offenders. 

In  an  adddess  to  a  graduating  class  at  Eureka,  Cal., 
in  1913,  the  author  of  By  Right  of  Sword  said:  "Do 
not  permit  anybody  to  poison  you  with  the  thought 
that  society  owes  you  a  living,  even  if  you  fold  your 
arms  like  a  sluggard  or  select  the  criminal  career  of  a 
forger  or  a  burglar.  So  long  as  you  shall  believe 
that  all  work  is  bondage;  that  every  man  who  gives 
you  a  job  is  your  oppressor;  that  you  are  doomed  to 
hopeless  wage-slavery,  and  that  civilization  is  a  maze 
of  never-ending  tyrannies — ^you  will  likely  become 
some  kind  of  a  parasite,  a  defective,  delinquent,  or 
dependent — possibly  a  tinhorn  gambler,  a  race-track 
tout,  a  burglar,  or  a  murderer." 


CHAPTER  I. 

A  Campaign  of  Blunders 

THROUGHOUT  the  United  States  there  is  a  de- 
termined effort,  organized  by  opponents  of  the 
death  penalty,  to  portray  capital-punishment  as  a 
cruel  relic  of  a  wicked  past.  The  organizations  which 
oppose  the  death  penalty  for  treason  and  murder  are 
recruited  from  sundry  elements  of  society — anarchists, 
sentimentalists,  syndicalists,  the  I.  W.  W.,  many  types 
of  socialists,  and  the  devotees  of  some  new  religious 
cults  that  are  almost  a  unit  in  opposition  to  the  gal- 
lows. 

Scores  of  writers  and  speakers  are  already  active 
in  the  campaign  against  the  existing  order.  The  Anti- 
capital-Punishment  Society  of  America  is  in  the  field 
(1915)  to  overthrow  the  law  of  the  ages,  and  the 
governor  of  a  western  state  has  become  its  president. 

Hundreds  of  newspapers  have  been  enlisted  in  the 
service,  while  many  writers  and  speakers  are  engaged 
in  describing  the  whipping-post,  the  rack,  the  thumb- 
screw, the  "cat  and  triangle"  of  past  ages  as  symbols 
indicative  of  "the  brutal  philosophy  of  annihilation," 
which  they  would  overthrow  by  substituting  the  phi- 
losophy of  love,  so-called. 

"Thoughtful  Christians  do  not  favor  the  death 
penalty,  even  though  it  be  advocated  by  the  Reverend 
Charles  F.  Aked,"  exclaimed  a  recent  speaker,  address- 
ing a  New  York  audience.  She  added  a  comment  that 
indicates  the  line  of  argument  now  common,  as  foi- 
ls 


16  BY  RIGHT  OP  SWORD 

lows :  * '  Thoughtful  Christians  surely  do  not  desire  the 
death  penalty.  How  can  any  one  who  believes  in  God, 
the  creator  of  life,  advocate  the  taking  of  that  life 
which  God  himself  created?  Let  the  Christian  read 
Matthew,  vii,  1  and  Mark,  xii,  26,  and  he  will  have 
more  respect  for  the  thought,  Judge  not,  and  ye  shall 
not  be  judged;  condemn  not,  and  ye  shall  not  be  con- 
demned; forgive,  and  ye  shall  be  forgiven.  God  him- 
self, and  God  only,  is  the  supreme  arbiter,  so  all  judg- 
ment should  rest  in  him. ' ' 

Of  course  this  view  is  as  extreme  as  any  doctrine  of 
non-resistance  ever  advocated  by  Tolstoy  or  the  early 
Christians,  as  will  be  shown  farther  on.  The  followers 
of  this  cult  do  not  seem  to  realize  that  its  logical  en- 
forcement would  disrupt  the  church,  overthrow  all 
governments,  and  leave  the  world  the  prey  of  the 
brutal  and  the  vicious. 

The  citations  are  extreme  examples  of  the  misappli- 
cation of  sayings  that  clearly  applied  to  individuals  with 
reference  to  their  intercourse  with  their  neighbors. 
It  is  said  that  some  of  those  who  now  quote  the  words 
of  Christ  against  the  gallows,  formerly  deemed  him 
a  mythical  personage.  Such  is  the  uncertainty  of 
human  belief ! 

In  none  of  the  great  debates  on  the  subject  of  capital- 
punishment  have  any  of  the  contestants  ever  quoted 
the  first  twelve  verses  of  Matthew  or  such  texts  as 
Luke  vi,  Romans  ii,  James  iv,  or  Samuel  xii,  as  being 
in  opposition  to  the  death  penalty.  In  these  portions 
of  the  Scripture,  the  idea.  Judge  not,  and  ye  shall 
not  be  judged,  in  varying  phraseology,  has  always  been 
construed  by  the  great  commentators  as  having  to  do 
with  persons  having  a  tendency  to  become  pharisaical 


A  DEFENSE  OF  CAPITAL-PUNISHMENT    17 

in  their  critical  aloofness,  therefore  condemnatory  in 
their  opinions  of  their  neighbors. 

The  "  I-am-holier-than-thou "  type  were  in  the  mind 
of  Christ,  who  rebuked  their  critical  attitude  and 
their  spiritual  coldness.  Similarly,  Dante  portrays  the 
"frozen  souls"  whose  impulses  are  wholly  selfish.  He 
banishes  them  to  Lake  Coeytus. 

The  Scriptures  Are  Misunderstood. 

The  Reverend  John  T.  Shurtleff,  Episcopalian,  and 
the  Reverend  Robert  A.  Crichton,  Presbyterian,  con- 
tend that  these  quotations  are  wholly  misapplied 
when  used  against  capital-punishment  and  the  penal 
institutions  of  lawfully  constituted  governments  whose 
authority  was  never  challenged  by  Christ. 

Doctor  James  C.  Gray,  one  of  the  most  eminent  of 
Scriptural  commentators,  says  the  texts  concerning 
judgment,  condemnation,  and  forgiveness  become 
absurd  if  applied  in  such  a  way  as  to  make  them 
tolerant  of  wrong-doing.  He  concludes  that  the  only 
rational  meaning  of  these  texts  is  that  we  are  not  to 
become  self-constituted  judges  of  others'  faults. 

Doctor  Alexander  Maclareh,  prince  of  English  com- 
mentators on  the  Bible,  in  his  lectures  construing  the 
first  twelve  verses  of  Matthew  vii,  says:  "How  can 
we  help  judging,  and  why  should  we  not  judge?"  He 
shows  that  Christ  meant  that  we  were  not  to  become 
Pharisees,  men  of  one-sided  and  uncharitable  opinions, 
our  minds  fixed  on  the  shortcomings  of  others,  and  for- 
getful of  their  virtues. 

Doctor  J.  W.  McGarvey,  late  president  of  Lexington 
Bible  College,  and  an  eminent  commentator,  says :  "By 
its  terms,  Judge  not  is  a  universal  prohibition,  but  we 
are  also  authorized  to  judge  men  by  their  fruits.    Limit- 


18  BY  RIGHT  OF  SWORD 

ing  this  paragraph  by  that,  we  conclude  that  only  such 
judging  as  is  not  required  by  the  actual  conduct  of 
men  is  here  condemned."  In  other  words,  we  must 
not  judge  from  ill-will,  or  upon  insufficient  evidence. 

It  may  seem  superfluous  to  make  further  citations 
from  the  recognized  authorities  on  Biblical  texts,  but 
since  the  abolitionists  in  some  parts  of  the  country 
are  emphasizing  the  texts  in  question  as  being  pro- 
hibitive of  capital-punishment,  it  may  be  well  to  say 
that  not  one  commentator  takes  their  view.  Some 
additional  citations  are  submitted : 

SOME  AUTHORITATIVE  COMMENTS. 

The  Reverend  David  Brown,  of  Aberdeen,  Robert 
Jamieson,  of  Glasgow,  and  A.  R.  Fausset,  of  York,  England, 
co-authors  of  an  elaborate  work  of  many  volumes,  based  on 
the  great  commentaries  of  Henry  and  Scott,  take  the  posi- 
tion that  the  thing  condemned  in  the  text  under  analysis 
(Mathew  vii)  is  the  disposition  to  look  unfavorably  on  the 
character  and  actions  of  others,  which  leads  to  the  pro- 
nouncement of  rash,  unjust  and  unlovely  judgments  upon 
them. 

This  view  is  upheld  by  Joseph  Parker,  the  eminent  Lon- 
don commentator,  and  by  Adam  Clarke,  prince  of  expositors, 
who  says  that  "these  exhortations  are  pointed  against  rash, 
harsh  and  uncharitable  judgments,  the  thinking  evil,  where 
no  evil  seems,  and  speaking  it  accordingly." 

Lubyn  Williams,  the  London  commentator,  says:  "The 
Lord  opposes  the  censorious  spirit.  The  principle  of  your 
own  judgment  will  be  applied  in  turn  to  yourselves,  and  the 
censorious  man  is  hindered  in  his  work." 

Dean  Church  likewise  holds  that  "we  must  judge  others, 
but  not  carelessly  and  harshly." 

Parker's  discussion  of  the  texts  of  Matthew  is  exceed- 
ingly clear  and  complete.  He  says  the  text  means:  "Do 
not  be  bitter,  do  not  be  moved  by  the  spirit  of  animosity 
and  illiberality  and  uncharitableness.  We  must  judge,  in 
the  sense  of  forming  opinions  and  estimates  of  one  an- 
other— that  is  not  the  kind  of  judgment  which  is  forbidden 
in  this  exhortation  by  Jesus  Christ." 

Continuing,  he  says:  "The  spirit  that  is  condemned  here 
is  one  of  self-righteousness,  which  condemns  everybody 
who  does  not  do  exactly  as  we  think  should  be  done.     The 


A  DEFENSE  OF  CAPITAL-PUNISHMENT    19 

spirit  condemned  here  is  that  of  infallibility.  Find  a  man 
who  makes  himself  the  standard  of  everybody's  conduct, 
who  judges  everybody  by  himself,  and  who  gives  license  to 
his  tongue  in  forming  and  giving  opinions  on  such  persons, 
and  you  will  find  the  very  man  referred  to  in  this  exhorta- 
tion. In  so  far  as  you  are  self-contented,  self-pleased,  self- 
righteous,  in  so  far  as  you  think  it  to  be  your  duty  to  sit 
down  upon  the  throne  of  judgment  and  to  judge  all  your 
neighbors  and  the  whole  human  race,  that  far  are  you 
guilty  of  the  spirit  of  judgment  which  Jesus  Christ  con- 
demns in  this  text. 

"The  man  who  thus  judges  is  sowing  seed  which  he  will 
one  day  reap.  You  must  give  an  account  for  every  idle 
word.  You  shall  be  made  to  feel  the  bitterness  of  your 
speech,  and  the  cruelty  of  your  own  judgment  shall  come 
back  to  you  like  a  devouring  flame." 

In  utter  disregard  of  the  context  of  the  Scriptures, 
and  oblivious  of  the  opinions  of  eminent  commentators 
and  experts  in  the  construction  of  Hebrew  and  Greek 
texts,  such  passages  of  Scripture  as  those  just  cited 
are  erroneously  invoked  as  Scriptural  authority  against 
the  death  penalty.  It  is  becoming  customary  for  super- 
ficial students  of  the  Bible  to  assert  that  Christ 
abolished  all  the  laws  that  existed  under  the  Old  Dis- 
pensation. This  contention  is  elsewhere  shown  to  be 
unfounded,  illogical,  and  ridiculous. 

Ancient  Tortures  Called  to  Mind. 

Those  who  quote  these  sayings  are  fond  of  describ- 
ing the  tortures  and  floggings  that  were  common  dur- 
ing the  pilgrimages  of  criminals  from  Newgate  to 
Ludgate,  and  from  Charing  Cross  to  Westminster,  in 
England,  "when  the  hangman  gave  the  condemned 
wretch  a  lash  at  every  kennel  the  cart-wheel  grated 
against."  They  ask  why  the  modem  advocate  of 
capital-punishment  hesitates  to  retain  the  scourgings 
and  mutilations,  the  drawings  and  quarterings  of  the 
cruel  past,  which  are  vehemently  declared  to  be  a 


20  BY  RIGHT  OF  SWORD 

logical  part  of  the  death  penalty  and  its  "wicked 
brutality." 

We  are  reminded  that  prisoners  were  only  recently 
bound  in  irons  and  crowded  into  dark,  filthy,  ill-ven- 
tilated dungeons.  We  are  told  how  they  were  starved, 
beaten,  and  clad  in  rags.  We  are  then  asked  why 
we  do  not  advocate  the  same  treatment  now,  since  it 
was  a  part  of  the  old  custom  of  hanging. 

The  abolitionist  then  tells  us  that  Beccaria,  Romilly, 
Bentham,  and  many  other  great  reformers  of  their 
time,  were  denounced  as  dreamers  when  they  sought 
better  treatment  for  prisoners,  when  they  even  de- 
manded food,  light,  water,  air,  and  clothing  for  the 
unfortunate.  "As  we  are  called  ultra-humane  to-day, 
simply  because  we  want  to  abolish  the  death  penalty, ' ' 
says  one  prominent  writer  on  the  subject,  "so  they 
were  denounced  for  coddling  cut-throats,  pampering 
criminals,  and  making  the  jails  too  comfortable."' 
There  is  no  argument  in  such  jumbling  and  juggling 
of  facts  and  fancies. 

So  bitter  are  some  of  the  abolitionists  that  they  de- 
nounce almost  everything  that  has  come  from  the  past, 
barely  stopping  short  of  Euclid's  elements  and  New- 
ton's law  of  gravitation.  In  their  eagerness  to  sweep 
all  before  them,  they  forget  the  fact  that  the  great 
reformers  they  quote,  stood  stoutly  for  the  gallows  at 
th«  very  time  of  their  most  important  work  of  refor- 
mation. The  fact  that  Romilly  and  the  select  company 
of  brave  reformers  of  his  time  were  careful  to  preserve 
the  gallows  for  treason  and  murder  does  not  seem  to 
embarrass  them  in  their  argument. 

An  example  of  the  activities  of  the  foes  of  the  gallows 
will  suffice  to  indicate  the  line  of  their  general  attack. 
At  Los  Angeles,  California,  in  July,  1913,  a  league  was 


A  DEFENSE  OF  CAPITAL-PUNISHMENT    21 

incorporated  "for  the  purpose  of  conducting  a  state- 
wide campaign  in  opposition  to  capital-punishment,  a 
survival  of  the  dark  ages  of  human  history."  It  is 
announced  that  similar  organizations  are  to  be  incor- 
porated in  other  states  without  delay.  Governor  Blease, 
of  South  Carolina,  is  pardoning  everybody,  while 
Governor  Hunt,  of  Arizona,  would  preserve  the  life  of 
every  murderer  in  America. 

One  of  the  prominent  Los  Angeles  daily  newspapers, 
acting  in  a  sense  as  spokesman  for  the  League,  says: 
"There  is  a  practical  unanimity  of  opinion  in  Los 
Angeles  in  favor  of  the  movement  thus  enthusiastically 
launched  for  reform.  Capital-punishment  is  simply 
murder,  whether  committed  by  society  or  by  an  in- 
dividual. It  violates  the  law,  'Thou  shalt  not  kill,* 
and  either  hatred  or  revenge  is  invariably  the  motive 
of  the  state  and  the  individual.  The  worst  use  to  which 
society  can  put  a  man  is  to  kill  him,  for  death  reforms 
neither  him  nor  others.  Society's  concern  is  not  with 
the  individual,  but  with  society  itself." 

These  examples  of  opinions  are  sufficient  to  indicate 
the  kind  of  arguments  now  being  repeated  throughout 
the  United  States.  The  word  "reactionary"  is  in- 
variably applied  to  those  who  maintain  the  present  pre- 
dominating system.  To  call  capital-punishment  a  relic 
of  barbarism  is  usually  deemed  sufficient  to  confuse 
its  advocates. 

Notwithstanding  the  assurance  with  which  all  sorts 
of  superficial,  erroneous,  and  sweeping  statements  are 
thus  circulated,  it  may  be  maintained  beyond  all  ques- 
tion that  the  abolitionists  have  not  discovered  any  new 
and  useful  principle  of  penology,  even  if  they  do  insist 
on  labeling  their  plan  as  "the  conception  of  modernity 
and  humanizing  penology. ' '    There  is  no  short,  logical. 


22  BY  RIGHT  OF  SWORD 

and  Christian  route  leading  to  such  wisdom  as  the 
devotees  of  the  new  idea  pretend  to  have  found  and 
tested. 

PHILOSOPHERS  FAVOR  CAPITAL-PUNISHMENT. 

Herbert  Spencer,  who  was  perhaps  the  greatest 
philosopher  of  the  nineteenth  century,  patiently  re- 
examined the  foundations  of  learning.  He  had  before 
him  the  data  cautiously  gathered  during  a  long  and 
active  life  of  logical  thinking.  For  him  the  past,  as 
such,  had  none  of  the  force  of  authority,  as  all  know 
who  have  marveled  at  his  bold  disregard  of  orthodoxy 
in  both  religion  and  science ;  yet  Spencer  was  not  able 
to  reason  to  a  conclusion  differing  from  the  primal  law 
enunciated  in  the  Noachian  code  which,  in  one  form  or 
another,  under  sundry  systems  of  government,  has  ruled 
men  for  countless  ages,  because  an  expression  of  uni- 
versal truth,  as  the  legitimate  record  of  the  sane  verdict 
of  all  mankind.  Similarly,  Sir  Leslie  Stephen,  reason- 
ing from  different  premises,  came  to  the  same  conclu- 
sion. Stephen,  like  Spencer,  familiar  with  every 
ethical  theory  ever  set  forth,  and  withal  a  man  of  vast 
erudition,  of  philosophical  mind,  and  gentle  impulses, 
stood  unwaveringly  for  the  hangman  as  a  necessity  in 
extreme  cases.  His  Science  of  Ethics,  the  result  of 
more  than  thirty  years'  research,  maintains  the  validity 
of  the  death  penalty.  The  late  Professor  Ray  Madding 
McConnell,  of  Harvard  University,  gave  the  world  a 
masterful  work  in  his  Grimiiial  Responsibility,  the  cul- 
mination of  a  career  of  scholarly  research  and  brilliant 
achievement.  He  stands  for  capital  punishment,  as  do 
scores  of  the  most  competent  thinkers  and  masters  of 
scientific  research,  men  whose  works  on  penology, 
psychology,  ethics,  and  metaphysics  are  authoritative 
in  the  fields  they  cover. 


A  DEFENSE  OF  CAPITAL-PUNISHMENT    23 

The  long  array  of  geniuses  thus  defending  an  ancient 
penal  system  saw  no  rational  way  to  abolish  the  gallows 
in  the  ease  of  those  wild  beasts  of  men  who  wantonly 
destroy  their  fellow-men.  No  question  should  be  de- 
cided on  the  mere  authority  of  a  great  name,  though 
the  conclusions  of  eminent  thinkers  are  always  worthy 
of  careful  consideration.  Now,  if  the  masters  of  phi- 
losophy, psychology,  ethics,  theology,  and  sociology  have 
failed  to  find  that  the  death  penalty  is  a  relic  of 
barbarism,  therefore  out  of  place  in  this  age,  why 
should  we  accept  the  off-hand  and  superficial  pro- 
nouncements of  editors  and  politicians  concerning  the 
proper  course  to  take  in  the  case  of  the  deliberate 
murderer?  Why  should  we  rashly  reverse  the  judg- 
ment of  history  and  substitute  a  policy  of  lenity  out  of 
all  proportion  to  the  awfubaess  of  the  crime  under 
consideration  ? 

Ex-president  William  Howard  Taft  made  a  searching 
study  of  the  effect  of  the  death  penalty  on  society  and 
crime.  As  a  Federal  judge,  as  secretary  of  war,  as 
governor-general  of  the  Philippines,  and  as  president 
of  the  United  States  he  was  frequently  in  an  official 
position  that  invoked  his  conscience  and  his  judgment. 
In  response  to  an  inquiry  from  the  author  of  By  Right 
of  Sword,  under  date  of  July  22,  1913,  Mr.  Taft  writes 
as  follows:  "I  have  no  hesitation  in  saying  that  I 
think  the  abolition  of  the  death  penalty  is  a  mistake, 
and  my  impression  is  that  the  states  that  have  tried 
it  have  found  it  to  be  so.  It  is  certainly  a  deterrent 
for  crimes  of  bloody  violence,  and  I  don't  think  we 
have  reached  the  time  when  we  can  afford  to  dispense 
with  it." 

As  a  mere  opinion,  this  expression  of  the  former 
president's  is  certainly  entitled  to  more  weight  than 


24  BY  RIGHT  OF  SWORD 

the  opinion  of  an  editor  or  other  private  citizen  of 
limited  experience  with  the  administration  of  the  law 
and  the  handling  of  criminals. 

Yet  an  increasing  number  of  persons  are  being  lured 
into  the  belief  that  society  has  no  right  to  take  the 
lives  of  its  most  vicious  and  abandoned  members,  the 
premeditated  murderers  who  infest  the  land  in  increas- 
ing numbers,  plying  the  trade  of  "murder  as  a  fine 
art,"  as  De  Quincey  has  suggested. 

There  appears  to  be  an  increasing  reverence  for  the 
life  and  happiness  of  the  totally  wicked  enemies  of 
society  who  commit  deeds  of  shocking  violence.  Women 
of  refinement  shed  tears  over  men  who  have  violated 
and  slain  tender  girls.  Petitions  are  signed  and  *  *  move- 
ments" are  started  in  behalf  of  wretches  whose  hearts 
are  void  of  social  duty,  and  whose  minds  are  fatally 
bent  on  mischief — ^fiends  beyond  all  hope  of  reforma- 
tion, even  if  reformation  were  the  prime  object  of 
puishment,  as  sometimes  asserted  by  the  reformers. 

But  there  is  no  valid  basis  for  the  Utopian  belief  that 
the  life  of  such  a  murderer  should  be  spared,  and  even 
deemed  more  sacred  than  the  life  of  his  victim  or  the 
safety  of  society,  whose  laws  he  has  broken  with 
impunity.  From  the  viewpoint  of  justice,  logic,  and 
expediency,  sanctioned  by  the  highest  conceivable 
ethical  ideals,  society  is  warranted  in  ending  the  life 
of  any  member  thereof  whose  presence  and  example 
are  a  menace  to  its  safety. 

Those  who  make  impassioned  appeals  for  the  mur- 
derer, usually  in  the  name  of  mercy  and  under  the 
influence  of  a  sublimated  conception  of  duty,  or  under 
the  belief  that  they  have  been  commanded  to  love  all 
created  things,  make  no  effort  to  answer  the  stern 
arguments   of    expediency    and    ethical    justification. 


:A;  defense  of  CAPITAL-PUNISHMENT    25 

These  arguments,  placing  the  safety  of  the  whole  above 
the  safety  of  any  of  its  parts,  have  withstood  the 
experience  of  ages,  in  all  climates,  under  all  flags  and 
religions,  and  among  all  ranks  and  conditions  of  men. 

NO  NEW  LIGHT  ON  THE  SUBJECT. 

The  claim  that  a  great  light  has  been  seen  in  recent 
years,  that  a  new  and  marvelous  treatment  for  murder 
has  been  discovered,  is  invalid  and  worthless.  We  are 
dealing  for  the  most  part  with  the  same  old  human 
nature  that  has  been  the  riddle  of  all  governments  and 
all  systems  of  philosophy.  Good  and  bad,  joy  and 
sorrow,  Cain  and  Abel — these,  along  with  the  rewards 
of  the  just  and  punishment  of  the  wicked,  are  still 
interwoven  with  the  life  of  man  on  this  globe.  So 
long  as  one  diabolical  assassin  lives  to  plunge  his 
dagger  into  the  kind  and  loving  heart  of  wife  or 
child,  to  slay  an  honest  neighbor  for  his  weekly  wage, 
or  to  poison  his  foe  for  revenge,  the  drastic  law  applies ; 
and  society  is  justified,  by  every  consideration  of 
humanity  and  expediency,  in  taking  the  toll  of  the 
murderer's  life.  As  Henry  L.  Oldham  has  said,  **Let 
us  abolish  the  death  penalty,  but  not  until  the  mur- 
derers first  abolish  it." 

A  Great  Philosopher's  Views. 

Sir  Leslie  Stephen  wisely  reminds  us  (The  Science 
of  Ethics,  page  444)  that  "the  great  forces  which 
govern  human  conduct  are  the  same  that  they  have 
always  been  and  always  will  be.  The  dread  of  hunger, 
thirst,  and  cold ;  the  desire  to  gratify  the  passions ;  the 
love  of  wife  and  child  or  friend;  sympathy  with  the 
sufferings  of  our  neighbors;  resentment  of  injury  in- 
flicted upon  ourselves — these  and  such  as  these  are 
the   great  forces  which   govern   mankind.     When  a 


26  BY  RIGHT  OF  SWORD 

moralist  tries  to  assign  anything  else  as  an  ultimate 
motive,  he  is  getting  beyond  the  world  of  realities.  My 
desire  for  the  welfare  of  my  race  grows  out  of  my 
desire  for  the  welfare  of  my  intimates.** 

In  the  light  of  such  conclusions,  every  man  who  con- 
siders the  murder  evil,  should  exercise  his  imagination 
to  the  extent  of  putting  himself  in  the  place  of  the 
victim's  family  and  friends.  Let  him  suppose  that  the 
person  murdered  had  been  his  own  relative.  It  has 
been  said  by  a  trial  judge  of  wide  experience  that  it 
is  impossible  for  any  kind  and  just  man,  with  the 
red  blood  of  a  civilized  being  in  his  veins,  to  contem- 
plate without  emotions  that  demand  redress,  the  wanton 
slaying  of  his  wife,  mother,  or  child. 

It  was  because  of  the  cry  for  redress  that  the  mur- 
derer was  tried,  in  olden  times,  by  those  who  witnessed 
his  deed,  and  the  relative  was  permitted  to  avenge  the 
crime  with  his  own  hands.  But  society  took  that  right 
away  from  the  relative,  under  its  solemn  promise  to 
carry  out  the  law.  The  modem  abolitionist,  however, 
would  leave  the  bereaved  relative  to  ponder  over  the 
wisdom  of  sparing  the  slayer's  life,  consoling  him  with 
the  thought  that  society  is  carefully  protecting  the 
murderer  from  harm,  in  a  modern  "prison  hospital 
for  the  victims  of  heredity." 

This  expensively  maintained  home  of  peace  and  rest, 
from  which  the  murderer  always  has  an  opportunity 
of  escape,  either  by  parole,  pardon,  or  killing  a  guard, 
is  to  be  maintained  at  public  expense.  The  family  of 
the  murdered  man  is  forced  to  contribute  taxes  for  the 
murderer's  comfort.  The  reformer  would  see  to  it  that 
the  murderer  always  eats  and  sleeps  in  comfortable 
quarters.  In  some  states  the  stigma  of  wearing  stripes 
has  already  been  removed.  Cadet  uniforms,  for  example. 


A  DEFENSE  OF  CAPITAL-PUNISHMENT    27 

have  invaded  Californian  prisons.  The  new  plan  would 
see  that  the  murderer  is  well  groomed  and  fed,  housed 
and  entertained. 

Under  this  conception  Retributive  Justice  is  robbed 
of  her  sword,  punishment  is  denounced  as  a  relic  of  the 
cave-dweller,  the  law  of  love  is  invoked,  and  the  proc- 
ess is  labeled  "the  scientific  treatment  of  the  unfor- 
tunate, under  modern  conceptions  of  penology."  This 
is  the  work  of  tyros! 

Since  the  normal  man  of  good  impulses  shudders  at 
the  thought  of  inflicting  pain  and  death,  he  is  glad 
to  welcome  any  substitute  thus  proclaimed  as  an  im- 
provement over  the  hangman.  In  an  easy-going  way 
the  person  appealed  to  by  the  abolitionist  soon  signs 
a  petition  and  promises  to  vote  against  capital-punish- 
ment. 

It  is  unfortunate  that  so  few  persons  ever  stop  to 
challenge  the  advocates  of  the  sentimental  theories 
that  reject  the  gallows.  The  masses  are  busy  with  their 
own  affairs,  however,  and  the  question  is  dismissed 
with  the  thought  that  the  world  is  growing  better. 
Kind  men  and  gentle  women  weep  at  the  thought  of 
hanging  a  murderer,  forgetting,  in  their  eagerness  to 
avoid  the  shedding  of  blood,  the  victim  of  the  murderer, 
whose  blood  was  innocently  shed,  his  immediate  family, 
the  wrong  that  society  has  suffered,  and  the  encourage- 
ment that  the  lenity  they  would  substitute  would  afford 
to  other  criminals.  Unfortunately,  the  world  abounds 
in  monsters  who  laugh  at  prison  locksmiths  and  par- 
doning boards,  fearing  nothing  save  the  gallows,  and 
hardly  fearing  that,  in  view  of  the  organized  activity 
of  its  many  foes  in  churches,  clubs,  and  drawing-rooms. 


28  BY  RIGHT  OF  SWORD 

**Iii  this  age  of  superficiality  and  fads,"  says  Pro- 
fessor Peabody,  "it  is  easy  to  start  almost  any  theory 
and  gain  converts  to  it.  Only  a  few  years  ago  an  old 
man  in  the  State  of  Washington  threw  off  his  cloth- 
ing, proclaimed  himself  the  Messiah,  and  won  a  large 
following.  He  was  later  slain  by  a  brother  of  the 
young  woman  whom  he  had  led  into  debauchery,  and 
the  deluded  woman  later  slew  her  brother,  while  he  was 
taking  her  back  to  the  home  of  their  parents." 

Several  years  ago,  in  a  similar  way,  a  Western  editor 
started  a  spectacular  crusade  against  penitentiaries, 
criminal  codes,  and  the  gallows  in  particular.  It  was 
not  long  before  his  office  was  thronged  with  a  motley 
crowd  of  virtuous  and  sympathetic  women,  ex-convicts, 
dissolute  men,  and  the  advocates  of  "love  and  lenity 
as  the  sole  basis  of  the  only  prison  discipline  compatible 
with  civilization."  Those  who  believe  in  the  death 
penalty  were  characterized  as  reactionary  and  anti- 
social enemies  of  mankind.  Strange  as  the  fact  may 
seem,  the  war  thus  started  has  become  so  vigorous  that 
society  is  permeated  with  the  advocates  of  abolition. 

MILLIONS  ABE  STILL  SANE. 

The  fact  remains,  however,  that  millions  of  prominent 
men  and  women — ministers,  editors,  teachers — stand 
stoutly  for  the  death  penalty  in  extreme  cases.  This 
is  the  view  of  many  of  the  kindest  and  gentlest,  the 
sanest  and  best  men  and  women  in  every  community. 
They  know  that  the  death  penalty  has  the  sanction  of 
the  great  moral  instructors  of  every  age.  They  know, 
too,  that  it  has  had  the  sanction  of  the  wisest  and  best 
of  mankind,  and  that  it  is  justified  by  law  and  logic, 
by  history  and  criminology,  by  the  highest  ethical 


A  DEFENSE  OF  CAPITAL-PUNISHMENT    29 

standards,  and  by  the  very  laws  of  life  itself. 

Without  the  right  of  self-defense  and  governmental 
severity  the  worid  would  long  ago  have  become  the 
prey  of  brigands  and  poisoners.  If  self-preservation 
be  a  right  and  a  duty,  as  Herbert  Spencer  has  said ;  if 
the  preservation  of  society  be  more  important  than  the 
life  of  any  one  of  its  corrupt  units,  then  is  the  gallows 
sanctified  by  long  use  and  by  the  doctrine  of  the  great- 
est good  to  the  greatest  number. 

The  general  welfare  is  more  important  than  the  fate 
of  an  evil-doer.  The  sword  must  remain  as  a  symbol 
of  law  and  order.  It  must  so  remain  for  the  safety  of 
society,  in  spite  of  the  attacks  that  are  made  on  the 
hangman,  who  is  portrayed  in  his  accidental  carmine, 
rather  than  as  an  incarnation  of  one  who  * '  beareth  not 
his  sword  in  vain, ' '  but  as  a  minister  of  righteousness. 

The  foes  of  the  gallows  emphasize  the  fact  that  the 
murderer  is  a  victim  of  fate.  He  should  be  fed  and 
clothed  at  public  expense,  maintained  in  a  sanitary 
prison,  and  entertained  by  orators  and  musicians,  be- 
cause it  was  his  misfortune  that  he  was  not  born  a  poet 
or  a  philosopher. 

Ed  W.  Howe,  the  eminent  author  of  The  Story  of  a 
Country  Town,  writes  as  follows  in  Howe's  Monthly, 
Atchison,  Kansas: 

Punishment  Is  as  necessary  as  reward.  The  boy  who 
brings  in  wood  promptly  Is  rewarded  by  his  mother;  his 
brother  who  neglects  his  chores  is  slapped.  The  same  prin- 
ciple is  carried  out  in  every  walk  of  life.  It  is  as  necessary 
to  hang  some  men  as  it  is  to  honor  others.  Thousands  of 
men  are  industrious  and  well-behaved  because  of  punish- 
ment. The  present  craze  to  be  good  to  convicts  and  fallen 
angels  Is  wrong;  not  that  the  state  or  the  community  en- 
joys punishing  the  evil-doer,  but  because  it  is  as  necessary 
as  rewarding  a  good  man  for  good  conduct.  Spare  the  rod 
and  spoil  the  child  sounds  like  brutal  doctrine,  but  it  is 
sound.  Whenever  truth  and  common-sense  are  crowded 
out  by  sentiment,  unnecessary  trouble  results. 


30  BY  RIGHT  OF  SWORD 

Those  who  insist  that  capital-punishment  is  a  rational 
and  necessary  penalty  in  an  age  that  produces  brutal 
(even  professional)  murderers,  are  not  more  unkind 
than  those  who  maintain  that  the  present  generation 
should  preserve  the  lives  of  murderers  because  they  are 
the  innocent  victims  of  heredity  and  environment. 

Survival  of  the  fittest  is  nature's  way,  harsh  though 
that  way  may  seem.  The  preservation  of  the  weak 
elements,  of  the  dangerous  and  the  degenerate,  can 
never  lift  society  to  a  higher  plane.  With  beak  and 
claw,  talon  and  club,  hoof  and  horn,  the  warring 
forces  of  life  have  fought  their  battles  through  thou- 
sands of  generations.  The  elimination  of  the  murderer 
because  of  his  unfitness  for  social  life  is  in  the  line  of 
"manifest  destiny  and  benevolent  excision," 

We  have  become  civilized  to  the  extent  that  the  man 
who  desires  to  slay  his  brother  should  be  told  in  plain 
terms  that  the  penalty  for  his  crime  will  be  death. 
This  is  neither  the  stone  age  nor  the  age  of  cannibalism, 
but  we  who  desire  to  enjoy  life,  liberty,  and  the  pursuit 
of  happiness  in  order  that  we  may  pursue  the  serious 
and  thoughful  Work  of  the  world,  must  rid  ourselves 
of  the  murderer  and  his  tax  on  industry.  We  must 
purge  ourselves  of  him  and  his  offspring,  not  by  pre- 
serving him  in  luxuriously  furnished  penitentiaries  with 
grand  opera  and  Sunday  school  annexes,  but  by  the 
swift  and  certain  way  of  the  old  law.  We  must  teach 
all  men  that  there  is  too  much  cant  about  the  sacred- 
ness  of  human  life  in  general,  since  the  life  of  no 
individual  of  the  human  species  should  be  regarded 
as  sacred  unless  it  is  made  sacred  by  respecting  the 
lives  of  all  other  human  beings. 

If  a  man  would  have  his  life  regarded  as  sacred, 
let  him  look  upon  the  lives  of  others  as  sacred.    A  man 


A  DEFENSE  OF  CAPITAL-PUNISHMENT    31 

should  be  made  to  understand  that  on  no  other  terms 
may  he  have  a  lease  of  life.  If  it  be  a  man's  mis- 
fortune to  be  born  a  murderer,  let  that  misfortune 
be  charged  to  his  ancestors,  to  fate,  or  what  not;  but 
let  him  understand  once  for  all  that  the  same  fate 
that  made  him  a  murderer  metes  out  to  him  the  mur- 
derer 's  just  punishment — annihilation. 

"So  many  agitators  are  now  urging  the  abolition  of 
capital  punishment,"  says  Attorney  A.  J.  Monroe,  "that 
one  might  suspect  that  a  new  panacea  for  murder  had 
been  discovered,  though  such  a  conclusion  would  be 
wholly  invalid;  and  so  many  voices  are  calling  the 
death  penalty  a  relic  of  barbarism,  which  it  is  not,  that 
the  public  is  likely  to  forget,  if  it  ever  knew,  that  the 
Christian  doctrine.  Whoso  sheddeth  man's  blood,  by 
man  shall  his  blood  be  shed  (Genesis,  ix:6),  came  as 
a  blessing  to  our  ancestors  of  the  North,  who  had  long 
been  degraded  by  the  custom  of  paying  blood  money 
to  the  families  of  murdered  men,  the  murderer  thereby 
escaping  further  punishment  than  the  fine.  This  fine 
was  arranged  in  advance  by  schedule,  the  fee  varying 
with  the  social  rank  of  the  person  killed.  This  custom 
is  described  in  historical  works,  legal  treatises,  and 
in  the  encyclopedias." 

The  fact  that  Christianity  overthrew  the  early  Teu- 
tonic and  Celtic  law,  is  forgotten.  The  Northern  pre- 
Christian  law  permitted  the  murderer  to  make  amends 
to  society  and  the  friends  and  relatives  of  his  victim 
by  the  payment  of  blood  money.  One  who  desired  to 
become  a  slayer,  either  for  revenge  or  any  other  wanton 
and  wicked  motive,  could  consult  the  scheduled  value 
of  his  intended  victim,  commit  his  crime,  and  expiate 
for  his  offense  by  paying  the  monetary  price.  This 
blood  money  custom  flourished  in  semi-barbaric  times 


32  BY  RIGHT  OF  SWORD 

and  later  among  Scandinavian  and  Teutonic  races. 
Christianity  introduced  the  Noachian  code,  which  de- 
manded the  forfeit  of  the  murderer's  life.  This  is  his- 
tory, in  spite  of  the  fact  that  the  abolitionists  would 
make  us  believe  that  the  gallows  was  erected  by  the 
cave  man.  See  the  latest  edition  of  the  Encyclopedia 
Britaunica,  volume  iv,  page  85. 

SOME  CRIMES  WERE  BOTLESS. 

But  even  under  the  reign  of  the  blood  money  law, 
some  crimes  were  "botless,"  that  is,  not  to  be  settled 
for  with  money.  Some  offenders  might  be  killed  by 
their  foes  wherever  found,  namely :  one  who  had  slain 
another  in  a  church,  or  while  the  victim  slept.  Such 
murderers  were  outlawed. 

Before  society  took  charge  of  the  execution  of  mur- 
derers, individuals  were  usually  permitted  to  kill  those 
who  had  slain  their  relatives,  under  the  doctrine  that 
such  an  "avenging  of  the  blood"  was  the  proper  jus- 
tification of  the  deep-seated  feeling  of  human  resent- 
ment which  has  in  all  ages  been  righteously  felt  toward 
murderers. 

In  his  remarkable  volume  entitled  Law:  Its  Origin, 
Growth  and  Function,  the  late  James  C.  Carter,  un- 
doubtedly the  foremost  American  lawyer  of  the  nine- 
teenth century,  says  (page  42)  that  "the  payment  of 
a  sum  of  money  or  the  delivery  of  property  to  the 
family  of  a  slain  man  was  the  method  of  expiating  for 
murder  in  the  past."  He  says  we  find  a  custom 
established  everywhere  in  barbarous  society  of  the  pay- 
ment of  a  fixed  sum  by  the  family  of  one  who  had 
slain  another  to  the  family  of  the  victim  by  way  of 
compromise  for  the  injury.  He  maintains  that  it  would 
be  true  to  say  that  "we  know  of  no  race  or  tribe  of 


A  DEFENSE  OF  CAPITAL-PUNISHMENT     33 

men  in  the  past  who,  or  whose  ancestors  in  the  case 
of  cilivilzed  people,  did  not  have  this  custom,  nor  any 
now  barbarous  tribe  which  does  not  have  it.  We  do 
not  find  it  at  the  time  of  the  earliest  historical  accounts 
of  Greece  and  Rome,  but  those  accounts  do  not  reach 
back  to  the  barbarous  times  of  those  nations." 

The  Laws  of  Solon  and  the  Twelve  Tables  of  Rome 
were  regulations  for  peoples  who  had  for  centuries 
emerged  from  a  state  of  barbarism.  Carter  does  not 
doubt  that  the  custom  prevailed  among  the  Greeks  and 
Romans  antecedent  to  the  selection  of  regular  magis- 
trates to  declare  and  execute  the  law.  In  the  poems 
of  Homer  there  are  many  evidences  that  the  custom 
obtained  among  the  Greeks.  The  Latin  work  poena 
originally  signified  the  price,  or  composition,  by  which 
the  crime  was  expiated.  The  Germans,  our  own  ances- 
tors, were  found  in  this  condition  of  barbarism  within 
historic  times,  and  Tacitus  informs  us  that  all  crimes 
were  compounded  by  the  payment  of  cattle.  Among 
the  Iroquois  Indians  compounding  was  the  custom. 
Among  the  Maoris  every  offense  except  murder  had  a 
pecuniary  equivalent.  It  is  thus  seen  that  the  death 
penalty  did  not  originate  in  barbarous  times.  The  idea 
of  taking  a  human  life  in  atonement  for  the  wanton 
slaying  of  a  human  being  belongs  to  a  spiritual  and 
social  development  unknown  to  barbarians.  The  feel- 
ing that  murder  unpunished,  or  punished  lightly,  is  a 
violation  of  the  moral  order  of  the  universe  belongs 
to  a  philosophy  and  an  ethical  conception  incapable  of 
comprehension  by  a  depraved  or  brutal  people. 

PRIVATE  REVENGE  BAD. 

The  Corsican  vendetta  and  some  of  the  bloody  feuds 
common  in  the  Southern  States  of  the  United  States  are 


34  BY  RIGHT  OF  SWORD 

survivals  of  the  barbaric  view  of  crime  and  its  punish- 
ment. 

"The  desire  to  resent  wrong  is  so  strong  in  human 
nature,"  said  the  late  Judge  Henry  S.  Kelley,  a  writer 
on  criminal  law,  "that  blood  revenge  is  almost  the 
first  impulse  of  every  manly  man  whose  mother,  wife, 
or  child  has  been  wantonly  slain.  If  the  law  is  in- 
operative or  lenient,  private  violence  at  once  abounds 
and  lynehings  increase." 

All  human  experience  has  justified  the  death  penalty 
for  certain  crimes.  In  Babylon  (2285  B.  C.)  the  death 
penalty  was  unquestioned  for  murder,  and  the  Roman 
law  followed  it,  though  Christianity  for  a  time 
mitigated  the  severity  of  the  older  codes. 

Can  the  bulk  of  human  history  be  wrong  in  its 
judgment  that  desperate  murderers,  like  venomous 
reptiles  and  wild  beasts  that  prey  on  men,  should 
have  no  place  in  the  society  of  peaceful  men?  We  do 
not  slay  the  man-eating  lion  and  tiger  because  of 
hatred,  wicked  revenge,  or  the  desire  to  make  them 
suffer,  but  because  their  removal  is  necessary  to  the 
safety  of  men.  Either  the  man-eating  beasts  or  we 
must  abandon  the  country.  But  a  cold-blooded  mur- 
derer, having  cunning  intelligence  without  moral  re- 
straint, is  infinitely  more  dangerous  than  any  species 
of  animal  on  the  globe.  Why  slay  the  tiger  and  care- 
fully preserve  the  human  beast? 

Those  who  would  substitute  life  imprisonment  and 
an  elaborate  system  of  schools,  exercises,  and  curri- 
culums  of  moral  training,  at  grave  danger  and  exces- 
sive cost  to  society,  overlook  the  fact  that  all  experi- 
ence shows  that  life  imprisonment  does  not  become 
life  imprisonment  in  fact. 

After  persons  and  situations  have  changed,  or  under 


A  DEFENSE  OP  CAPITAL-PUNISHMENT    35 

the  sway,  perhaps,  either  of  weak  or  corrupt  govern- 
ors and  pardoning  boards,  many  murderers  have  been 
set  free  as  reformed.  The  alarming  fact  in  connection 
with  this  policy  is  that  more  than  two-thirds  of  the 
habitual  criminal  class  become  recidivists,  and  as  such 
are  returned  to  confinement.  Many  others,  returning 
to  criminal  careers,  doubtless  escape  detection  and  con- 
viction. Furthermore,  the  man  in  the  cage  is  a  serious 
problem  and  an  increasing  menace  to  society,  both 
while  in  the  cage  and  after  he  is  set  free. 

It  is  argued  that  no  punishment  can  restore  the  life 
of  the  murderer's  victim.  True,  but  the  death  of  the 
murderer  secures  society  against  him.  His  elimina- 
tion is  justified  on  the  ground  that  it  is  the  duty  of 
government  to  protect  the  lives  of  the  innocent  by  the 
utmost  means  at  its  command. 

In  further  answer  to  the  contention  that  capital- 
punishment  does  not  restore  the  life  of  the  murderer's 
victim,  it  may  be  said  that  neither  does  any  other 
punishment  make  such  restoration.  If  restoring  the 
dead  to  life  is  to  be  the  test  of  the  validity  of  punish- 
ment, then  why  punish  a  murderer  at  all? 

If  it  be  said  that  society  has  no  moral  right  to  take 
the  life  of  a  human  being,  then  it  is  equally  true  that 
society  has  no  moral  right  to  take  away  a  man's 
liberty,  or  to  inflict  pain  by  imprisonment.  Society 
can  not  restore  the  life  of  the  murderer,  nor  can  it 
recall  the  vanished  years  and  restore  to  a  prisoner 
the  time  he  has  spent  in  prison.  In  principle,  there 
is  no  difference  between  the  right  to  take  away  a 
man's  life  and  the  right  to  rob  him  of  his  freedom. 
The  fundamental  ethical  principle  underlying  this 
view  of  the  case  is  elucidated  by  Herbert  Spencer  in 


36  BY  RIGHT  OF  SWORD 

his  Social  Statics,  in  his  Data  of  Ethics,  and  in  sundry 
of  his  scientific  essays. 

Chancellor  Kent,  one  of  the  greatest  writers  on  the 
principles  of  law,  wrote  a  brilliant  justification  of  the 
gallows.  Like  Daniel  Webster,  who  often  asserted 
that  society  was  justified  in  administering  capital- 
punishment,  Kent  was  a  kind  and  learned  man.  Like 
Webster,  too,  he  was  familiar  with  history  and  human 
nature — the  same  human  nature  that  exists  to-day, 
except  that  the  criminal  class,  * 'pampered  and  un- 
punished," as  a  brilliant  Minnesota  attorney  has  said, 
"is  bolder  and  probably  more  numerous  in  this  State 
than  ever  before." 

WEBSTER'S  CLEAR  EXPOSITION. 

In  the  course  of  his  famous  speech  in  the  Knapp 
murder  trial,  Daniel  Webster  laid  down  the  principle 
of  punishment  as  follows: 

The  criminal  law  is  not  founded  in  a  principle  of  venge- 
ance. It  does  not  punishi  that  it  may  inflict  suffering.  The 
humanity  of  the  law  feels  every  pain  it  causes,  every  hour 
of  restraint  it  imposes,  and  more  deeply  still  every  life  it 
forfeits.  But  it  uses  evil  as  the  means  of  preventing  greater 
evil.  It  seeks  to  deter  from  crime  by  the  example  of 
punishment.  It  restrains  the  liberty  of  the  few  offenders, 
that  the  many  who  do  not  offend  may  enjoy  their  liberty. 
It  takes  the  life  of  the  murderer,  that  other  murders  may 
not  be  committed.  The  law  might  open  the  jails  and  at 
once  set  free  all  persons  accused  of  offenses,  and  it  ought 
to  do  so  if  it  could  be  made  certain  that  no  other  offenses 
would  be  thereafter  committed;  because  it  punishes,  not  to 
satisfy  any  desire  to  inflict  pain,  but  simply  to  prevent  the 
repetition  of  crimes.  When  the  guilty,  therefore,  are  not 
punished,  the  law  has  so  far  failed  of  its  purpose;  the 
safety  of  the  innocent  is  so  far  endangered.  Every  un- 
punished murder  takes  away  something  from  the  security 
of  every  man's  life.  Whenever  a  jury,  through  whimsical 
and  ill-founded  scruples,  suffers  the  guilty  to  escape,  they 
make  themselves  answerable  for  the  augmented  danger  to 
the  innocent. 


A  DEFENSE  OF  CAPITAL-PUNISHMENT     37 

CHANCELLOR  KENT'S  ANALYSIS. 

Chancellor  Kent  (Commentaries,  Vol.  iv,  page  625) 
discusses  the  question  as  follows: 

The  punishment  of  death  is,  doubtless,  the  most  dread- 
ful and  the  most  impressive  spectacle  of  public  justice;  and 
it  is  not  possible  to  adopt  any  other  punishment  equally 
powerful  by  its  example.  It  ought  to  be  confined  to  the 
few  cases  of  the  most  atrocious  character,  for  it  is  only  in 
such  cases  that  public  opinion  will  warrant  the  measure,  or 
the  peace  and  safety  of  society  require  it.  Civil  society  has 
an  undoubted  right  to  use  the  means  requisite  for  its 
preservation;  and  the  punishment  of  murder  with  death 
accords  with  the  judgment  and  the  practice  of  mankind, 
because  the  intensity  and  the  violence  of  the  malignity 
that  will  commit  the  crime  require  to  be  counteracted  by 
the  strongest  motives  which  can  be  presented  to  the  human 
mind. 

Grotius  is  decidedly  of  the  opinion  that  capital-punish- 
ment is  not  only  lawful,  in  certain  cases,  under  the  divine 
law,  but  indispensable  to  restrain  the  audaciousness  of 
guilt. 

In  spite  of  such  views,  the  abolitionists  represent 
the  advocates  of  capital-punishment  as  bloodthirsty 
dervishes  howling  for  revenge,  and!  even  eager  to 
cause  suffering.  All  kind  and  gentle  men  and  women 
regret  that  murderers  stalk  abroad.  They  regret,  too, 
that  even  murderers  must  be  punished  by  drastic 
measures  that  offend  the  finer  sensibilities.  There  are 
cases,  however,  when  "the  parlor  and  the  study-win- 
dow view  of  life"  must  give  way  to  the  sternness  of 
the  judicial  judgment,  under  which,  at  times,  lenity 
is  the  height  of  folly.  Our  conduct  toward  offenders, 
under  any  rational  view,  must  be  determined,  in  the 
greater  measure,  by  their  conduct  toward  us,  un- 
pleasant as  this  conclusion  may  appear  when  discussed 
at  an  afternoon  tea,  or  in  the  presence  of  the  young 
women  of  a  boarding-school.  Like  many  other  un- 
pleasant questions,  that  of  capital-punishment  gives 
rise  to  feelings  of  painful  regret,  especially  if  those 
discussing  it  are  persons  of  refined  natures. 


38  BY  EIGHT  OF  SWORD 

But  the  most  just,  refined,  and  perfect  man,  un- 
alterably opposed  to  the  infliction  of  pain  on  trans- 
gressors, deeply  enraptured  with  Utopian  theories  of 
non-resistance,  would  become  embarrassed  if  he  should 
attempt  to  carry  out  his  ideals  among  a  tribe  of  head- 
hunters  or  cannibals  in  the  South  Sea  Islands.  That 
song  from  "The  Mikado,"  which  "makes  the  punish- 
ment fit  the  crime,"  carries  the  correct  philosophy. 
In  taking  preventive  measures  that  fit  the  necessities, 
one  contemplating  a  tour  of  some  of  the  Philippine 
Islands  would  be  exercising  common-sense  without 
violating  the  highest  ethical  standards.  In  other  words, 
our  conduct  toward  offenders  is  determined  by  their 
conduct  toward  us.  Among  footpads  and  assassins, 
who  recognize  only  the  law  of  might,  cunning,  and 
brutality,  the  person  who  invokes  only  the  law  of  love, 
the  "resist  not  evil"  theory,  must  be  destroyed. 
Similarly,  a  penal  code  that  makes  lenity  and  for- 
giveness the  basis  of  its  punishments,  must  prove 
worthless.  For  cogent  reasoning  in  support  of  this 
view,  consult  Herbert  Spencer's  Data  of  Ethics,' page 
280. 

EMERSON  ON  WHINING  LOVE. 

Emerson  says,  '  *  we  must  teach  the  doctrine  of  hatred 
when  love  pules  and  whines."  The  Reverend  John  W. 
Chadwick  has  amended  the  Emersonian  dictum  by 
suggesting,  "not  the  doctrine  of  hatred,  but  of  the 
terrible  things  in  righteousness,  the  sternness  of  the 
moral  law." 

Fear  can  not  be  banished  from  consideration  in 
the  affairs  of  men.  It  is  a  particularly  powerful 
influence  on  the  criminal  mind,  which  is  not  amenable 
to  the  higher  ideals.     It  has  been  said  that  fear  of 


A  DEFENSE  OF  CAPITAL-PUNISHMENT     39 

parents  is  the  beginning  of  goodness — fear  of  their 
punishment,  displeasure,  blame,  disappointment,  and 
grief.  These  are  a  brace  and  moral  spur.  The  manly 
man  would  not  bow  down  in  shame  the  heads  of  *'the 
old  folks  at  home,"  or  bring  his  parents  with  sorrow 
to  the  grave  on  account  of  his  misconduct.  Fear  of 
one's  fellows,  of  the  shame  and  disgrace  of  drunken- 
ness, of  the  weakening  of  the  vital  forces,  the  pain 
and  suffering  of  disease,  is  a  deterrent  that  holds  many- 
men  in  paths  of  rectitude. 

"If  the  punishment  of  pain  and  disease  were  not 
the  natural  results  of  a  dissolute  life,"  says  a  prom- 
inent physician,  "the  world  would  plunge  into 
excesses  unknown  to-day,  for  as  Emerson  has  said,  God 
made  man  with  passions  strong,  in  order  that  the  race 
might  be  perpetuated,  even  at  the  risk  of  wrecking 
the  occasional  individual.  Fear  is  everywhere  a  con- 
straining influence." 

Fear  of  the  future  makes  men  frugal,  makes  the 
world  industrious.  Fear  of  the  disapproval  of  par- 
ents, friends,  public  opinion,  coupled  with  that  fear 
of  an  accusing  conscience  that  makes  cowards  of  us 
all — this  has  a  restraining  force  the  very  opposite  of 
love.  Nor  does  fear  work  on  the  minds  of  the  vicious 
only.  Even  the  gentlest  and  best  persons  are  dis- 
turbed by  it.  In  truth,  highly  moral  persons  fear 
the  frowning  disapproval  of  society  for  misconduct, 
and  the  fear  is  in  proportion  to  their  refinement, 
whereas  the  criminal  knows  no  such  fear  at  all.  For 
him  the  deterrent  force  must  be  more  violent  than 
public  opinion. 

DEATH  IS  THE  KING  OF  TEBROBS. 

There  is  a  large  type  of  low-minded  criminals  to 
whom  fear  of  death  may  be  said  to  be  the  only  vivid 


40  BY  RIGHT  OF  SWORD 

and  restraining  picture  sufficient  to  determine  their 
conduct.  Death  is  pre-eminently  the  king  of  terrors 
to  men  of  this  type.  For  such  conditions  as  the 
depraved  murderer  presents  we  need  Carlyle's  "hang- 
man's whip  to  hold  the  wretch  in  order."  To  some 
minds,  "the  hell  of  physical  misery,  degradation,  de- 
feat, and  death"  is  the  only  symbol  that  frightens 
from  the  career  of  crime.  Dante,  Milton,  and  Shake- 
speare, alike  with  the  thundering  texts  of  the  Hebrew 
Scriptures,  deal  with  human  nature  as  it  has  been, 
in  the  main,  since  recorded  time.  Consult  Wallace 
in  index, 

"Against  some  people,  in  short,  the  only  effective 
arguments  are  the  gallows  or  the  prison,"  says  Sir 
Leslie  Stephen  in  his  Science  of  Ethics,  page  413. 

Herbert  Spencer  warns  us  that  we  can  not  extract 
golden  conduct  from  the  essentially  leaden  instincts 
of  humanity,  especially  from  the  depraved  instincts 
of  the  criminal  type.  So  long  as  the  world  is  cursed 
with  fiendish  murderers  who  count  on  the  law's  de- 
lays, the  lenity  of  courts  and  juries,  the  policy  of 
"painless  punishment,"  and  the  misapplied  doctrine 
of  non-resistance,  under  a  prison  system  that  supplies 
either  a  Tetrazzini  or  a  Bernhardt  "to  relieve  the  lone- 
liness of  congregate  prison  life,"  as  one  advocate 
urges,  just  that  long  will  murderers  go  unwhipped  of 
justice,  committing  crime  after  crime  with  increasing 
freedom  from  chastisement. 

It  is  the  certainty  and  swiftness  of  capital-punish- 
ment for  murder  that  makes  Great  Britain  and  her 
colonies  the  countries  where  the  fewest  murders  in 
the  world  are  committed  to-day.  It  was  the  manifest 
inadequacy  of  life  imprisonment  for  murder  that  caused 
France   to   restore   the    guillotine,    that   restored   the 


A  DEFENSE  OF  CAPITAL-PUNISHMENT    41 

gallows  in  Iowa  and  Colorado,  and  that  is  to-day 
causing  a  movement  for  its  restoration  in  several  other 
states.  It  was  the  swift  and  certain  punishment  ad- 
ministered by  the  old  Vigilance  Committee,  after  the 
courts  had  broken  down,  that  stopped  the  carnival 
of  brutal  murders  that  disgraced  San  Francisco  in 
1856.  The  authors  of  The  Annals  of  San  Francisco 
tell  us  (page  567)  that  "not  one  criminal  had  been 
executed,  though  it  was  notorious  that  at  this  period 
at  least  one  hundred  murders  had  been  committed 
within  the  period  of  a  few  months." 

WHEN  HANGINGS  DECREASED  CRIME. 

Under  such  circumstances  there  was  no  opportunity 
to  check  criminals  by  applying  the  doctrine  of  broth- 
erly love  and  non-resistance.  Even  eminent  ministers 
of  the  Gospel  urged  the  stern  men  of  those  days  to 
take  drastic  means  to  check  crime.  Just  what  resulted, 
is  thus  told  on  page  585  of  The  Annals: 

"The  fate  of  Jenkins,  Stuart,  Whittaker,  and  Mc- 
Kenzie  showed  that  rogues  and  roguery,  of  whatever 
kind,  could  no  longer  expect  to  find  a  safe  lurking 
place  in  San  Francisco."  Again,  on  page  582,  thus: 
**In  consequence  of  the  examples  made  of  Jenkins 
and  Stuart  (who  were  publicly  hanged),  crime  was 
now  fast  diminishing'  in  San  Francisco,  and  the  num- 
ber of  notorious  criminals  was  much  reduced." 

The  authors  describe  how  the  press,  the  pulpit,  and 
the  grand  juries  openly  defended  the  action  of  the 
Vigilance  Committee,  on  the  doctrine  that  expediency 
warranted  the  unusual  procedure.  There  was  an  urgent 
need  for  the  protection  of  the  lives  and  property  of 
the  innocent.  The  community  was  swiftly  purged  of 
its  worst   members.     Those   who   were   not   hanged, 


42  BY  RIGHT  OF  SWORD 

hastily  escaped  from  the  city.  The  example  was  in 
every  way  salutary  and  has  been  justified  by  eminent 
thinkers  as  excusable  by  reason  of  the  corruption 
of  the  courts  and  the  failure  of  the  regularly  con- 
stituted authorities  to  enforce  the  law. 

Almost  every  great  reformer  of  the  past  maintained 
that  the  death  penalty  was  justified  in  extreme  cases. 
Those  who  corrected  abuses  of  courts  and  prisons, 
pleaded  for  an  extension  of  the  law  of  love,  and  re- 
pealed obnoxious  laws,  still  left  the  murderer  to  his 
fate.  Though  Solon  and  Lycurgus  repealed  the  harsh 
laws  of  Draco,  they  preserved  the  Draconian  punish- 
ment for  murder.  Though  Sir  Samuel  Romilly  and 
his  illustrious  associates  cut  the  list  of  capital  offenses 
from  several  hundred  to  four,  they  reserved  the  right 
of  sword  in  the  assassin's  case.  Like  the  Greeks  and 
the  Romans,  except  during  a  brief  period  of  disastrous 
lenity  in  Rome,  the  British  law-givers  have  always 
stoutly  refused  to  abolish  the  gallows  for  the  mur- 
derer. Lord 's  Beacon  Lights  of  History,  Vol.  iii,  pages 
29  and  69,  and  the.  old  edition  of  the  American  En- 
cyclopedia, Vol.  iii,  page  144,  give  some  interesting 
facts  in  this  connection. 

Goldsmith  makes  the  Vicar  of  Wakefield  say:  "In 
cases  of  murder,  the  right  of  capital-punishment  is 
obvious,  as  it  is  the  duty  of  all,  from  the  law  of  self- 
defense,  to  cut  off  that  man  who  has  shown  disregard 
for  the  life  of  another." 

This  view  has  been  supported  by  Bentham,  by  Sir 
Samuel  Romilly  (1757-1818),  by  Basil  Montagu,  Mack- 
intosh, Sir  Robert  Peel  and  his  associates,  the  eminent 
British  prison  reformers  who  were  famous  in  their 
generation. 

The  United  Kingdom's  Royal  Commission  worked 


A  DEFENSE  OF  CAPITAL-PUNISHMENT    43 

diligently  from  1864  until  1866,  studying  the  history 
of  capital-punishment  and  the  world's  prison  systems, 
then  reported  in  favor  of  retaining  it  for  treason, 
deliberate  murder,  and  some  other  crimes.  Neither 
human  nature,  the  fundamental  principles  of  penology, 
nor  the  character  of  murderers  can  be  shown  to  have 
undergone  the  slightest  organic  change  since  the  British 
Commission  made  its  illuminating  report. 

Sir  James  Stephen  and  Charles  Kingsley  favored 
capital-punishment  and  wrote  a  series  of  discussions 
on  the  subject.  The  Encyclopedia  Britannica  says: 
* '  It  certainly  seems  strange  that  the  community  should 
feel  bound  carefully  to  preserve  and  tend  a  class  of 
dangerous  criminals,  and  give  them,  as  Charles  Kings- 
ley  says,  'the  finest  air  in  England  and  the  right  to 
kill  two  jailors  a  week.'  " 

The  logic  of  this  remark  has  not  been  answered  by 
any  of  those  who  propose  new  and  dangerous  experi- 
ments in  penology. 

NOT  TOO  CIVILIZED  FOR  GALLOWS. 

It  is  sometimes  argued  that  the  human  race  has 
become  so  civilized,  its  character  so  much  improved 
in  these  modern  times,  that  the  gallows  is  a  grewsome 
and  useless  survival  from  remote  times  when  the  char- 
acter of  mankind  was  essentially  cruel  and  depraved 
in  comparison  with  its  present  sublimation.  In  a 
country  like  America,  where  life  and  property  are 
unsafe  in  almost  every  hamlet  and  city  in  the  Union, 
where  footpads  and  burglars  abound,  and  where  there 
are  from  seven  to  ten  thousand  murders  a  year,  most 
of  which  are  not  punished  at  all,  this  is  a  strange 
statement. 

Those  who  lightly  imagine  that  because  Abraham 


44  BY  RIGHT  OF  SWORD 

Lincoln's  age  freed  the  slaves  of  the  South  we  have 
become  angelic,  should  read  Alfred  Russell  Wallace's 
Social  Environment  and  Moral  Progress,  written  by 
the  great  evolutionist  when  past  ninety  years  of  age. 
Here  is  a  man  who  had  been  an  observer  and  a  great 
scientist  for  almost  seventy  years,  yet  his  indictment 
of  the  age  is  terrific.  Coming  from  Darwin's  con- 
temporary and  the  co-discoverer  of  the  principles  of 
evolution  and  natural  selection,  the  work  is  worthy 
of  attention.  It  is  certainly  an  illuminating  reply  to 
the  baseless  assumption  that  this  age  has  outdone  all 
other  ages  in  moral  achievements  and  conceptions. 

Wallace  concludes  that  the  permanence  and  high 
type  of  intellect  and  the  standard  of  moral  conduct 
have  been  maintained  from  the  earliest  ages  of  which 
we  have  any  knowledge.  Even  savages  are  our  equals 
in  moderation,  candor,  reasoning  powers,  and  respect 
for  the  rights  of  others,  as  shown  by  the  records  of 
travelers  the  world  over. 

Euclid  and  Archimedes  were  the  equals  of  the  great- 
est mathematical  intellects  of  any  age  of  which  we 
have  knowledge,  while  Moses,  Solon,  and  Plato  knew 
as  much  about  right  and  wrong  and  about  ethical 
ideals  as  is  known  by  anybody  on  the  globe  to-day; 
so  the  great  Wallace  concludes:  "There  has  been  no 
definite  advance  of  morality  from  age  to  age,  and 
even  the  lowest  races,  at  each  period,  possessed  the 
same  intellectual  and  moral  nature  as  the  higher.  The 
essential  character  of  man,  intellectual,  emotional,  and 
moral,  is  inherent  in  him  from  birth;  but  its  manifes- 
tations in  conduct  can  be  modified  in  a  very  high 
degree  by  the  influence  of  public  opinion  and  sys- 
tematic teaching."     See  Wallace,  page  45. 

If  public  opinion  gives  all  the  sympathy  to  the  mur- 


A  DEFENSE  OF  CAPITAL-PUNISHMENT    45 

derer  and  teaches  that  he  is  "  a  victim  of  the  ages ' '  he 
will  soon  look  for  his  turkey  dinner  every  day,  rather 
than  be  content  to  wait  for  a  newspaper  to  give  it  to 
him  on  Christmas,  in  addition  to  having  an  editorial 
on  his  ease  every  afternoon. 

Instead  of  being  advanced  too  far  for  the  gallows, 
says  a  noted  writer,  our  inhumanity,  our  cruelties,  and 
immoralities — adulterations,  briberies,  forgeries,  and 
crimes  of  violence — all  these  invite  a  more  drastic  code 
than  we  have  ever  known.  "Wallace  denoimces  our 
immoral  and  wicked  social  environments,  our  insan- 
itary trades,  our  competitive  and  wicked  economic 
blunders,  and  our  lack  of  brotherly  co-operation.  He 
shows  that  painful  and  disfiguring  diseases  spring  from 
empoisoned  surroundings;  that  men,  women,  and  chil- 
dren are  over-worked  and  under-paid;  that  millions 
die  from  preventable  causes;  that  race  degeneration 
and  sexual  immoralities  abound,  so  he  concludes  thus : 
**It  is  not  too  much  to  say  that  our  whole  system  of 
society  is  rotten  from  top  to  bottom,  and  the  social 
environment  as  a  whole,  in  relation  to  our  possibilities 
and  our  claims,  is  the  worst  the  world  has  ever  known." 
This  conclusion  is  certainly  as  close  to  the  truth  as  the 
random  guesses  of  those  who  flippantly  assert  that  the 
present  century  and  this  country  carry  the  weight 
of  all  the  virtues  on  the  shoulders  of  more  perfect 
men  than  have  ever  before  graced  the  planet. 

In  his  work  entitled  Character  and  Life,  Wallace 
shows  that  there  is  no  proof  whatever  of  any  real 
advance  in  human  character  during  the  whole  his- 
torical period,  also  that  there  can  be  no  progressive 
improvement  in  character  without  some  selective 
agency  tending  to  such  improvement.  Since  he  and 
Darwin   jointly   discovered   some   of  the   great  laws 


46  BY  RIGHT  OF  SWORD 

goveming  human  development,  and  since  his  standing 
in  this  line  made  him  a  leader  for  more  than  half  a 
century,  his  judgment  can  not  be  lightly  elbowed 
aside. 

He  tells  us  that  the  Vedic  Hymns  and  the  Hebrew 
Scriptures  contain  teachings  as  lofty  as  any  in  human 
history.  It  might  be  noted  that  the  death  penalty 
was  in  vogue  among  the  people  who  produced  the 
Hymns  and  the  Scriptures  referred  to  by  Wallace. 
Socrates  and  Plato,  about  400  B.  C. ;  Confucius  and 
Buddha,  one  or  two  centuries  earlier;  Homer,  earlier 
still;  the  great  Indian  epic,  the  Maha-Bharata,  about 
1500  B.  C. — all  these  and  the  splendid  peoples  of  an- 
tiquity who  were  contemporary  with  their  authors, 
afford  evidence  of  intellectual  and  moral  character 
equal  to  our  own,  and  absolutely  such  as  to  settle  the 
claim  as  to  our  great  morality  and  intellectual  ad- 
vancement as  compared  with  the  ages  when  the  death 
penalty  abounded.  The  wars  and  crimes  abounding 
among  the  ancients  were  not  any  worse  than  our 
own — no  more  shocking  than  Europe  in  arms  in  the 
year  1915,  or  than  the  twentieth  century  United  States 
of  America,  already  cursed  with  unpunished  murderers 
in  every  direction,  about  to  give  them  still  greater 
freedom  from  molestation. 

Without  pressing  this  question  further  here,  it  may 
well  be  said  that  the  boasted  assumption  that  the 
present  age  has  advanced  so  far  beyond  other  ages  in 
moral  ideals  and  upright  conduct  that  the  death  pen- 
alty stands  out  as  a  relic  of  barbarous  and  cruel  times, 
is  simply  ridiculous.  The  death  penalty  is  not  a  sur- 
vival from  times  inferior  in  morals  and  baser  in  con- 
duct than  our  own  age.  The  Noachian  covenant  was 
made  with  a  great  and  good  people.    The  death  pen- 


A  DEFENSE  OF  CAPITAL-PUNISHMENT    47 

alty  is  to-day  strictly  enforced  in  England,  and  the 
English  people  are  law-abiding,  civilized,  and  upright. 
Furthermore,  they  do  not  "whip  out  revolvers  and 
shoot  men  on  slight  provocation."  Nor  do  the  Ger- 
mans, the  French,  and  many  other  nations  where  the 
ancient  law  has  long  been  enforced. 

ROMAN  CATHOLIC  SAVANT  SPEAKS. 

Although  the  Biblical  arguments  are  treated  ex- 
haustively in  another  chapter,  it  is  deemed  advisable 
to  give  a  short  and  clear  statement  of  the  Roman 
Catholic  view  here,  though  the  reader  should  consult 
the  chapter  entitled  Christianity  Justifies  the  Death 
Penalty. 

The  Reverend  Father  Jerome  S.  Ricard,  noted 
astronomer  and  former  professor  of  the  chair  of  ethics, 
mental  and  moral  philosophy,  at  Santa  Clara,  CaL, 
University,  writes  as  follows: 

My  Dear  Mr.  Irvine:  This  question  is  thrashed  out  by 
all  our  philosophers  and  theologians  in  accordance  with  the 
Old  and  New  Testaments  and  the  fundamental  data  of  rea- 
son. Whatever  commentaries  you  may  be  able  to  get  on 
the  New  Testament  will  only  reaffirm  what  you  have  already 
stated  or  quoted. 

1.  It  is  certain  that  the  Almighty  has  conferred  on  the 
state  the  power  needful  for  its  existence,  prosperity,  and 
perpetuation.  Whenever,  therefore,  capital-punishment  is 
necessary  to  secure  these  ends  the  state  has  the  right  to 
us  it. 

2.  It  is  certain  that  the  state  has  the  duty  and  the 
right  to  determine  and  inflict  whatever  punishment  is 
deemed  necessary  to  keep  order  and  peace  and  security  in 
society.  Nothing  can  deter  certain  malefactors  except  capi- 
tal-punishment. The  prison  is  only  a  sweet  recreation  for 
certain  obdurate  rogues;  therefore  the  state  has  the  right 
to  threaten,  and  therefore  inflict  capital-punishment. 


48  BY  RIGHT  OF  SWORD 

3.  What  all  people  everywhere  and  always  have  done  in 
this  regard  is  the  verdict  of  universal  reason.  Such  a  rea- 
son is  infallible  as  the  emanation  of  the  divine  Reason- 
ableness. 

4.  Demerit,  in  the  nature  of  things  and  to  preserve  the 
equality  of  rational  creatures,  must  be  met  by  a  return  in 
kind  or  equivalent.  Hence  the  legislator  whose  law  has 
been  violated  by  a  malefactor  and  who  must  see  that  it  is 
observed  is  the  proper  person,  and  the  only  proper  person, 
to  provide  that  such  a  return  be  made,  and  to  appoint  the 
manner  in  which  it  shall  be  made,  which  may  mean,  in 
some  cases,  capital-punishment.  [This  prevents  vendet- 
tas.— Editor.] 

5.  As  to  the  so-called  law  of  love,  Christ  only  empha* 
sized  the  plain  and  rational  duty  of  loving  our  fellow-man 
and  even  our  enemy,  because  he  is  a  man,  and  as  such  the 
image  of  God,  physical,  not  moral,  though  he  may  be  that, 
too. 

6.  Whatever  is  moral  law  in  the  Scriptures,  Christ  not 
only  did  not  abrogate,  but  came  to  fulfill.  What  he  did 
abrogate  are  only  the  paraphernalia  of  positive  law,  which 
is  as  changeable  as  the  circumstance  and  the  particular  situ- 
ation that  dictated  it.  Witness  the  doings  of  some  of  our 
immortal  legislatures!  What  Christ  meant  is  Rational 
Love,  not  the  sickly  sentimentality  of  certain  types  of  men 
and  women.  Now  the  best,  the  most  rational  love  that  we 
can  give  our  neighbor  is  to  whip  him,  if  necessary,  into 
keeping  the  ten  commandments.  Any  other  course  will  at 
times  be  only  weak  foolishness. 

7.  Capital-punishment  has,  I  am  sure,  saved  many  a 
soul  that  otherwise  would  have  gone  down  to  the  lowest 
hades,  this  by  the  sheerest  metaphysical  necessity  and 
despite  the  intensest  love  God  has  for  all  his  creatures. 

8.  What  you  say  about  the  fifth  commandment  is  ab- 
solutely true.  Thou  shalt  not  kill  is  only  an  abbreviated 
formula  for  Thou  shalt  not  kill  without  sufficient  cause. 
By  the  way,  the  ten  commandments  are  only  a  reaffirmation 
of  the  natural  law,  which  God  ideated  posterior  to  his  de- 
cree to   create  the  world,   and   which  he  promulgated  to 


\ 
A  DEFENSE  OF  CAPITAL-PUNISHMENT    49 

y 

creatures  when  he  made  them  leap  into  existence,  the  man- 
ner of  the  promulgation  being  according  to  the  creature's 
capacity  to  receive  it — by  determination  to  the  unfree,  and 
by  way  of  natural  knowledge  to  the  intelligent  and  free. 
This  natural  law  is  immutable  (it  is  the  Fate  of  the  old 
pagans),  and  Christ  was  no  more  capable  of  changing  it 
than  God  is  capable  of  contradicting  himself.  There  is, 
therefore,  nothing  new  in  the  New  Testament  beyond  a 
revelation  of  the  Trinity,  a  clearer  knowledge  of  heaven 
and  hell,  the  incarnation  of  the  Son  of  God  to  save  man, 
the  seven  sacraments  as  means  of  grace  to  the  sons  of  God 
and,  as  snch,  heirs  of  the  Kingdom.  All  else  is  only  a  re- 
affirmation of  the  natural  law  which,  in  the  course  of  ages, 
had  become  corrupted.     Sincerely  yours, 

J.  S.  RICARD. 

We  hear  much  talk  these  days  to  the  effect  that 
"the  state  is  not  authorized  to  murder  a  murderer 
because  the  murderer  slew  his  victim;"  also  that 
"hangings  are  legalized  murder."  These  superficial 
comments  belong  to  the  category  of  calumny,  and 
those  who  repeat  them  with  tiresome  iteration  fail  to 
see  that  there  is  no  argument  in  "calling  names." 
The  phrase  legalized  murder  is  a  contradiction ;  if  it  is 
legalized,  it  is  not  murder,  and  if  it  is  mnrder)  it  is 
not  legalized,  that  is,  sanctioned  by  law. 

The  Standard  Dictionary  clarifies  the  situation  by 
defining  murder  as  the  intentional  killing  of  one  hu- 
man being  by  another,  without  moral  right  or  legal 
authority.    Why  not  stand  by  the  definition? 

Under  the  Old  English  Law,  murder  was  the  secret 
killing  of  one  human  being  by  another — homicide 
privately  perpetrated,  no  one  being  present  to  see  or 
hear  it  done.  The  element  of  secrecy  is  not  necessary 
under  modem  law,  nor  was  it  necessary  under  the 
Common  Law.  All  now  required  to  constitute  murder 
is  for  a  rational  human  being  to  kill  another  with 


50  BY  RIGHT  OF  SWORD 

premeditated  malice  and  deliberation,  without  legal 
cause. 

If  the  slaying  thus  defined  is  done  by  a  person  of 
sound  mind,  the  crime  being  preconceived  and  com- 
mitted after  due  reflection,  as  by  poisoning  or  lying 
in  wait,  then  it  is  murder. 

If  the  critics  of  the  existing  order  were  to  say  that 
hanging  is  legalized  homicide  (also  justifiable),  they 
would  be  within  the  limits  of  truth.  As  well  say  that 
the  killing  of  an  irresponsible  man-slaying  maniac  by 
a  policeman  who  shoots  him  to  save  innocent  lives  is 
legalized  murder,  as  to  say  that  legal  hangings  are 
murder. 

In  San  Francisco  some  years  ago  a  violent  maniac 
bought  a  repeating  rifle,  stood  by  an  open  window  and 
slew  several  pedestrians  before  a  policeman's  bullet 
ended  his  life.  Did  the  policeman  commit  legalized 
murder?  We  heard  no  outcry  against  him,  and  no- 
body quoted  Thou  shalt  not  kill  as  an  evidence  that 
the  policeman  was  a  murderer.  Nobody  called  his 
attention  to  Love  thy  neighbor  as  thyself,  nor  yet  to 
Judge  not,  that  ye  be  not  judged,  although  the  police- 
man certainly  both  rendered  and  executed  summary 
and  wholly  justifiable  judgment  in  the  case  before 
him.  Maudlin  pleas  for  human  life  in  general,  regard- 
less of  overpowering  necessity  and  our  duty  to  end 
some  lives,  become  little  less  than  idiotic. 

Common-sense  and  the  policy  of  the  greatest  good 
to  the  greatest  number  often  lead  to  results  that  seem 
harsh;  but,  however  regrettable  may  be  the  necessity 
that  sometimes  requires  the  elimination  of  a  vicious 
member  of  society,  the  fact  remains  that  there  is  no- 
where a  satisfactory  substitute  for  the  death  penalty, 
if  we  are  to  regard  the  safety  of  society  of  greater 
importance  than  sparing  the  lives  of  its  foes — mur- 
derers among  them. 


CHAPTER  II. 

Drastic  Codes  Justified 

THE  latest  edition  of  the  Encyclopedia  Britannica 
(this  is  written  in  1914)  has  collected  and  sum- 
marized the  current  arguments  against  capital-pun- 
ishment. Prom  that  presentation  it  appears  that  the 
following  reasons  have  been  advanced:  (1)  On  the 
ground  that  we  may  not  rob  the  sinner  of  due  time 
for  repentance;  (2)  because  all  murderers  are  insane; 
(3)  because  capital-punishment  does  not  deter  others 
from  committing  crimes  of  similar  iniquity,  this  by 
reason  of  the  infrequency  of  its  being  carried  out,  and 
because  the  murderer  takes  the  chance  that  he  will 
escape ;  4)  because  of  the  danger  of  hanging  the  inno- 
cent; (5)  because  it  does  not  reform  the  offender. 

The  following  arguments  are  usually  presented  to 
combat  this  view :  First,  that  the  state  has  nothing  to 
do  with  theological  questions  concerning  repentance, 
also  that  the  view  advanced  in  argument  number  one 
is  based  on  antiquated  conceptions  of  eternal  punish- 
ment, compen8a);ion,  and  the  moral  law. 

In  opposition  to  the  contention  that  all  murderers 
are  insane,  it  is  maintained  that  this  theory  is  in  abso- 
lute, variance  with  the  facts,  unless  we  accept  the 
fanciful  view  that  every  man  whose  conduct  varies 
in  the  least  from  the  ideal  is  insane.  Lombroso  's  thesis 
concerning  criminal  degeneracy  and  the  irresponsi- 
bility of  the  wicked  has  been  refuted  as  a  whole, 
although  there  is  some  truth  in  the  general  theory. 

51 


5S  BY  RIGHT  OF  SWORD 

In  answer  to  the  contention  that  capital-punishment 
does  not  deter  others  from  committing  crime,  it  is  said 
that  there  is  little  if  any  value  in  this  class  of  nega- 
tive statistics,  as  pointed  out  by  Herbert  Spencer,  and 
as  all  logicians  agree.  In  further  opposition,  the  case 
of  the  United  Kingdom,  with  its  swift  and  certain 
punishment  of  murderers,  is  cited  as  a  marked  example 
of  the  deterrent  influence  of  capital-punishment.  It 
is  also  said  that  capital-punishment  was  speedily  re- 
stored in  France,  in  many  Swiss  cantons,  in  Germany, 
Colorado,  Iowa,  and  some  of  the  states  of  Italy,  be- 
cause of  the  rapid  increase  of  brutal  murders  after 
its  abolition. 

With  regard  to  hanging  the  innocent,  it  is  main- 
tained that  society  cannot  afford  to  pursue  a  policy 
of  lenity  toward  murderers  simply  because  an  innocent 
man  may  now  and  then  be  hanged.  As  between  the 
life  of  an  innocent  man,  caught  in  the  web  of  circum- 
stances, and  the  lives  of  hundreds  of  innocent  men 
that  may  be  taken  (under  a  policy  of  mistaken  lenity, 
by  reason  of  the  unrestrained  brutality  of  murderers), 
we  must  choose  the  lesser  evil,  which  may  even  result 
in  the  sacrifice  of  the  one  innocent  man. 

Furthermore,  it  is  proposed  to  limit  capital-punish- 
ment to  cases  where  the  evidence  is  overwhelming  and 
where  the  crime  is  one  of  undoubted  brutality,  free 
from  the  element  of  impulse,  as  in  a  sudden  quarrel. 
In  impulsive  cases,  life  imprisonment  would  be  sub- 
stituted. 

HANGING  AND  REFORM. 

In  answer  to  the  contention  that  hanging  does  not 
reform  the  offender,  it  is  said  that  it  comes  closer  to 
making  a  reformation  than  anything  ever  discovered. 


A  DEFENSE  OP  CAPITAL-PUNISHMENT    63 

on  the  theory  that  "a  dead  Indian  is  a  good  Indian," 
There  are  those  who  contend  that  the  majority  are 
reformed  just  before  they  die.  The  business  of  the 
state  is  not  to  reform  murderers,  but  to  protect  society. 
It  is  urged  that  society  cannot  take  the  risk  of  asso- 
ciating with  a  murderer  who  has  burned  his  neighbor 
at  the  stake,  poisoned  his  father  for  an  old  suit  of 
clothes,  or  beaten  his  mother  to  death  for  the  life 
insurance,  simply  because  some  devotee  of  the  law 
of  love,  so-called,  has  given  his  opinion  that  the  mur- 
derer is  now  sorry,  and  that  he  desires  to  become  a 
nurse  for  children,  or  a  watchman  in  a  bank. 

It  is  further  shown  that  two-thirds  of  all  criminals 
are  recidivists — confirmed  offenders  or  men  confined 
again  and  again  for  their  misdeeds — with  whom  so- 
ciety can  afford  to  take  no  further  risks.  It  is  also 
shown  that  the  criminal  is  beyond  the  influence  of 
reform,  on  the  one  hand,  and  that  his  prison  life  makes 
him  more  anti-social  than  he  was,  on  the  other.  Henry 
Maudsley  shows,  in  Body  and  Mind,  that  neither  kind- 
ness nor  severity  prevents  certain  criminal  types  from 
devising  and  doing  wrong.  They  are  beyond  the  law 
of  love.  See,  also,  McConneirs  Crimiiuil  Besponsibil- 
ity,  page  80. 

Herbert  Spencer  shows,  in  his  essay  on  Prison 
Ethics,  that  "it  is  notorious  that  prolonged  denial  of 
human  intercourse  produces  insanity  and  imbecility; 
and  on  those  who  remain  sane,  its  depressing  influence 
must  almost  of  necessity  entail  serious  debility,  bodily 
and  mental.'* 

mPEISONMENT  BECOMES  INHUMIAN. 

Spencer  shows  that  at  Dartmoor  and  Pentonville  the 
prisoners  hare  downcast  looks.     Their  brains  are  eo 


54  BY  RIGHT  OF  SWORD 

affected  that  they  cannot  give  replies  to  the  simplest 
questions,  for  imprisonment  makes  them  anti-social 
by  fostering  self-regarding  desires.  It  makes  even 
well-disposed  men  unfit  for  future  association.  While 
silence  and  solitude  may  cow  the  spirit  and  undermine 
the  energies,  they  cannot  reform  the  prisoner.  Page 
162,  Vol.  Ill,  Spencer's  Scientific  Essays. 

ANOTHER  ENCYCLOPEDIA  QUOTED. 

Under  the  title  Capital-Punishment,  the  Encyclo- 
pedia Americana  sets  forth  the  general  position  enunci- 
ated in  the  Britannica,  the  Standard,  and  other  ency- 
clopedias. Its  presentation  is  worth  consideration  and 
is,  briefly,  as  follows: 

The  right  to  administer  capital-punishment  has  been 
doubted  by  some  distinguished  persons ;  and  the  doubt 
is  often  the  accompaniment  of  a  highly  cultivated 
mind,  inclined  to  the  indulgence  of  romantic  sensi- 
bility, believing  in  human  perfectibility;  but  the  right 
of  society  to  punish  offenses  against  its  safety  and 
good  order  will  scarcely  be  doubted  by  any  consid- 
erate person. 

In  a  state  of  nature,  individuals  have  a  right  to 
guard  themselves  from  injury,  and  to  repel  aggres- 
sions by  a  force  or  precaution  adequate  to  the  object. 
This  results  from  the  right  of  self-preservation.  When 
men  enter  society,  the  right  to  protect  themselves  from 
injury  and  redress  wrongs  is  transferred  generally 
from  the  individual  to  the  community.  When  the 
right  of  society  is  once  admitted  to  punish  for  of- 
fenses, it  seems  difficult  to  assign  any  limits  to  the 
exercise  of  that  right,  short  of  what  the  exigencies  of 
society  require.  If  a  state  has  a  right  to  protect  itself 
and  its  citizens  in  the  enjoyment  of  its  privileges  and 


A  DEFENSE  OF  CAPITAL-PUNISHMENT    55 

its  peace,  it  must  have  a  right  to  apply  means  adequate 
to  this  object.  If  mild  punishments  fail  to  effect, 
more  severe  ones  must  be  resorted  to,  if  the  offense 
be  such  as  affects  society  in  its  vital  principles,  or 
safety,  or  interests.  The  very  frequency  of  a  crime 
must  often  furnish  a  very  strong  ground  for  severe 
punishment. 

LIFE  A  GIFT  OF  GOD. 

It  is  often  said  that  life  is  the  gift  of  God,  and 
therefore  it  cannot  be  justly  taken  away,  either  by 
the  party  himself,  or  another.  The  fallacy  of  this 
argument  is  obvious.  Life  is  no  more  the  gift  of 
God  than  are  any  other  personal  endowments  or  rights. 
A  man  has,  by  the  gift  of  God,  a  right  to  personal 
liberty  and  locomotion,  as  well  as  to  life;  to  eat  and 
drink  and  breathe  at  large,  as  well  as  to  exist,  yet  no 
one  doubts  that  he  may  be  perpetually  imprisoned,  or 
deprived  of  free  air,  or  compelled  to  live  on  bread 
and  water.  In  short,  no  one  doubts  that  he  may  be 
restrained  in  the  exercise  of  any  privileges  or  natural 
rights  short  of  taking  his  life.  Yet  the  reasoning,  if 
worth  anything,  extends  to  all  these  cases  in  an  equal 
degree.  If,  by  his  crimes,  a  man  may  justly  forfeit 
his  personal  rights,  why  not  his  life?  No  reasonable 
man  doubts  the  right  of  a  nation,  in  a  just  war,  espe- 
cially of  self-defense,  to  repel  force  by  force,  and  take 
away  the  lives  of  its  enemies.  In  these  cases  life  is 
freely  sacrificed  by  the  nation.  If  so,  why  may  not 
life  be  taken  away  by  way  of  punishment,  if  the  safety 
of  society  justifies  it? 

After  summarizing  some  of  the  sentimental  argu- 
ments against  the  death  penalty,  volume  I  of  the 
Americana  Supplement  says :    ' '  Plausible  as  these  and 


58  BY  RIGHT  OP  SWORD 

other  arguments  of  a  similar  nature  may  be,  the  un- 
doubted fact  remains  that  when  the  death  penalty 
was  abolished  in  France  the  number  of  brutal  murders 
increased  so  rapidly  that  it  was  necessary  to  put  the 
penalty  again  in  operation,  which  was  done  in  1909." 

In  the  same  article,  Dr.  George  F.  Shrady,  Jr.,  of 
New  York,  says:  "The  average  murderer  has  less 
fear  of  life  imprisonment  than  of  the  electric  chair. 
If  capital-punishment  were  abolished  homicides  would 
be  on  the  increase." 

All  modem  encyclopedias,  as  well  as  the  old  ones, 
justify  the  doctrine  of  capital-punishment  for  the  more 
brutal  crimes  that  occur  in  the  realm  of  murder  unre- 
strained. Now  it  stands  to  reason  that  these  great 
reference  works  would  set  forth  in  detail  ^ny  substi- 
tute that  had  proved  satisfactory.  These  volumes  cite 
instances  of  the  repeal  and  subsequent  restoration  of 
the  capital-punishment  law  here  and  there,  and  of  the 
infrequency  of  its  use  in  certain  states  and  provinces. 
They  also  note  the  growing  agitation  against  it  in 
many  American  states,  but  none  of  them  indicate  that 
any  new  theory  of  penology  has  solved  the  problem 
satisfactorily,  either  with  or  without  the  gallows,  in 
spite  of  the  glib  claim  of  many  agitators  that  the 
death  penalty  has  broken  down,  and  that  civilized 
states  now  look  upon  the  gallows  as  obsolete.  The 
United  Kingdom,  France,  and  Germany  are  carefully 
excepted  from  these  sweeping  statements.  See  McCon- 
nell's  Criminal  Responsibility,  page  335. 

HARSHNESS  BECOMES  A  DUT7. 

The  harshest  penal  system  is  ethically  justified,  if 
it  is  as  good  as  the  circumstances  of  the  time  permit. 
Though  we  are  not  a  low  and  barbarous  people,  we 


A  DEFENSE  OF  CAPITAL-PUNISHMENT    57 

have  a  dangerous  class  of  cold-blooded  murderers  among 
us,  also  sentimental  theories,  the  adoption  of  which 
would  make  all  punishment  a  farce. 

Let  us  examine  the  general  question  of  punishment 
through  the  spectacles  of  Herbert  Spencer,  the  great 
English  philosopher,  and  founder  of  the  synthetio 
system  of  philosophy.  He  has  gone  to  the  foundations 
of  learning  and  given  us  great  wisdom.  He  tracea 
every  theory  of  ethics  to  its  fundamental  source,  and 
shows  the  validity  of  the  gallows,  if  that  be  expedi- 
ent for  the  safety  of  society. 

Punishment  exists  in  nature,  and  offenders  have  to 
bear  the  evils  following  the  transgression  of  law.  The 
careless  man  falls  and  is  bruised  or  suffers  broken 
bones.  The  glutton  suffers  from  visceral  derange- 
ments, and  he  who  transgresses  the  conditions  of  social 
welfare  cannot  justly  escape  the  scourge  of  the  law. 
Even  the  harshest  penal  system  is  justified  if  the  cir- 
cumstances of  the  time  demand  its  restraining  power. 

mPOSSIBLE  ETHICAL  LAWS. 

If  one  holds  before  society  an  impossible  ethical 
law,  a  code  so  angelic  that  its  enforcement  substi- 
tutes the  law  of  love,  so-called,  for  the  law  of  force, 
he  at  once  unlocks  every  prison-door,  discharges  every 
sheriff,  and  abandons  courts  and  administrative  offices 
that  have  to  do  with  the  apprehension  and  punishment 
of  transgressors.  He  disbands  every  army,  sinks  every 
battleship,  and  abandons  every  personal  and  public 
means  of  enforcing  rights  of  property.  If  we  are  to 
meet  the  invasion  of  private  and  public  rights — the 
armed  foe  in  form  of  a  destroying  army,  as  well  as  the 
armed  foe  with  mask  and  bludgeon — by  submissive 
non-resistance,  we  perpetrate  wrong  by  permitting  the 


58  BY  RIGHT  OF  SWORD 

world  to  fall  under  the  domination  of  murderers  and 
thieves. 

On  page  118  of  Social  Statics,  Herbert  Spencer 
shows  that  "the  consistent  advocates  of  the  doctrine 
of  non-resistance  must  not  only  allow  themselves  to  be 
cheated,  assaulted,  robbed,  wounded  without  offering 
active  opposition,  but  must  refuse  help  from  the  civil 
power;  seeing  that  they  who  employ  force  by  proxy 
are  as  much  responsible  for  it  as  if  they  employed 
it  themselves." 

Tolstoy,  the  greatest  modern  disciple  of  the  theory 
of  non-resistance,  says  the  law  must  be  literally  ob- 
served, as  is  shown  later  in  this  discussion.  Under 
his  view  governments  and  churches  must  be  aban- 
doned. 

Continuing  this  phase  of  the  discussion,  Spencer 
says:  "Such  a  theory  makes  pacific  relationship  be- 
tween men  and  nations  look  needlessly  Utopian.  If 
all  agree  not  to  aggress,  they  must  as  certainly  be  at 
peace  with  each  other  as  though  they  had  all  agreed 
not  to  resist.  So  that,  while  it  sets  up  so  difficult 
a  standard  of  behavior,  the  rule  of  non-resistance  is 
not  one  whit  more  efficient  as  a  preventive  of  war  than 
the  rule  of  non-aggression." 

Moreover,  this  principle  of  non-resistance  is  not  deduci- 
ble  from  the  moral  law.  The  moral  law  says — Do  not  ag- 
gress. It  can  not  say — Do  not  resist;  for  to  say  this  would 
be  to  presuppose  its  own  pretexts  broken.  Morality  de- 
scribes the  conduct  of  perfect  men;  and  can  not  include  in 
its  premises  circumstances  that  arise  from  imperfection. 
That  rule  which  attains  to  universal  sway  when  all  men 
are  what  they  ought  to  be,  must  be  the  right  rule,  must  it 
not?  And  that  rule  which  then  becomes  impossible  of  ful- 
fillment must  be  the  wrong  one?  Well,  in  an  ideal  state  the 
law  of  non-aggression  is  obeyed  by  all — is  the  vital  prin- 
ciple of  every  one's  conduct — ^is  fully  carried  out,  reigns. 


A  DEFENSE  OF  CAPITAL-PUNISHMENT    59 

lives;   whereas  in  such  a  state  the  law  of  non-resistance 
necessarily  becomes  a  dead  letter. 

NON-RESISTANCE  IS  WRONG. 

Here  follows  the  conclusive  bar  to  the  impracticable 
theories  of  those  who  would  treat  the  murderers  of 
this  imperfect  world  as  if  they  were  the  erring  angels 
of  a  blighted  environment,  rather  than  the  wicked 
criminals  of  a  very  real  and  a  very  selfish  world. 
Spencer  thus  concludes: 

Lastly,  it  can  be  shown  that  non-resistance  is  absolute- 
ly wrong.  We  may  not  carelessly  abandon  our  dues.  We 
may  not  give  away  our  birthright  for  the  sake  of  peace. 
If  it  be  a  duty  to  respect  other  men's  claims,  so  also  is 
it  a  duty  to  maintain  our  own.  That  which  is  sacred  to 
their  persons  is  sacred  in  ours  also.  Have  we  not  a  faculty 
which  makes  us  feel  and  assert  our  title  to  freedom  of 
action,  at  the  same  time  that,  by  a  reflex  process,  it  en- 
ables us  to  appreciate  the  like  title  in  our  fellows?  Did 
Ve  not  find  that  this  faculty  can  act  strongly  on  behalf 
of  others,  only  when  it  acts  strongly  on  our  own  behalf? 
And  must  we  assume  that,  while  its  sympathetic  prompt- 
ings are  to  be  diligently  listened  to,  its  direct  ones  are  to 
be  disregarded?  No;  we  may  not  be  passive  under  ag» 
gression.  In  the  due  maintenance  of  our  claims  is  in- 
volved the  practicability  of  our   duties. 

In  other  words,  dogged  resistance  to  aggression  is 
the  instinct  of  freedom.  It  was  that  impulse  that  gave 
us  Magna  Charta,  the  Declaration  of  Independence, 
and,  back  of  these,  the  ancient  wars  that  won  for  civ- 
ilization its  ascendency  over  the  Persians,  the  Huns, 
and  other  barbaric  and  aggressive  foes.  Unscrupulous 
and  liberty-destroying  tyranny  has  never  been  throt- 
tled by  the  doctrine  of  passive  measures  and  non- 
resistance;  but  tyrants  have  been  destroyed  all  the 
way  from  Thermopylae  to  Bunker  Hill,  and  from 
Bunker  Hill  to  the  hanging  of  the  latest  murderer 
under  the  reign  of  law. 


90  BY  RIGHT  OF  SWORD 

It  is  worth  noting  that  the  doctrine  of  non-resisi- 
ance,  under  literal  interpretation,  was  for  ft  time  en- 
forced by  the  early  Christians.  Any  trustworthy  his- 
tory of  Christianity  will  show  how  hopelessly  the  ex- 
periment failed,  and  Christianity  overspread  the  glob* 
under  a  more  practical  and  aggressive  interpretation. 

SUPEE-HUMAN  CODES  RIDICULOUS. 

An  ultra-mundane  and  super-human  code  of  ethics 
is  not  practicable  in  the  world  we  know.  Tolstoy,  the 
latest  of  the  great  exponents  of  the  doctrine  of  non- 
resistance,  opposes  just  wars,  opposes  all  forms  of 
government,  and  all  resistance  against  aggression.  He 
repudiates  Exodus  xxi  and  xxiv  and  emphasizes  this 
sentiment:  "But  whosoever  smiteth  thee  on  thy  right 
cheek,  turn  to  him  the  other,  also.  And  if  any  man 
would  go  to  law  with  thee,  and  take  away  thy  coat, 
let  him  have  thy  cloak  also." 

He  commends  Leviticus  xix,  17,  18,  and  emphasizes 
the  literal  obligation  implied  in  the  commandment, 
"Love  your  enemies  and  pray  for  them  that  perse- 
cute you."  He  subscribes  to  the  doctrine  of  old 
Ferrucius,  who  said:  "Christians  are  not  allowed  to 
shed  blood,  even  in  a  just  war,  at  the  command  of 
Christian  emperors." 

He  cites  with  regret  the  fact  that  the  Montanists  and 
Manichaeans  were  ridiculed  for  views  like  those  of 
Ferrucius,  In  this  connection,  it  is  worth  while  to 
reflect  that  the  followers  of  Manes,  Mani,  or  Manichaes, 
who  lived  in  the  fourth  and  fifth  centuries  of  the 
Christian  Era,  condemned  marriage,  sexual  indulgence, 
and  the  use  of  animal  food  as  well.  See  Vol.  85  of  the 
Fortnightly  Review  for  his  articles  on  the  Law  of 
Love  versus  the  Law  of  Force,  pages  461  and  689. 


A  DEFENSE  OF  CAPITAL-PUNISHMETiT    61 

There  can  be  no  half-way  interpretation  of  the  law 
•f  love,  according  to  Tolstoy  and  others  who  abide 
by  the  ancient  and  long  abandoned  interpretation  of 
the  Scriptures.  As  before  said,  the  eariy  Christians 
forsook  their  sublimated  views  early  in  the  struggle 
of  the  Church  to  redeem  the  world. 

TOLSTOY'S  DOCTRINES  EXTEEME. 

Tolstoy  cannot  be  quoted  and  followed  piecemeal. 
Those  who  would  abide  by  his  doctrine  of  non-resis- 
tance must  follow  it  to  its  logical  conclusions,  as  he 
tried,  pitifully,  to  do.  They  must  forsake  civilized 
ideals,  dwell-like  peasants,  and  renounce  government. 
Above  all,  they  must  abandon  wealth  and  pleasure  for 
the  ascetic  life.  The  logical  result  of  the  doctrine  that 
oommands  us  to  turn  one  cheek  to  the  aggressor  after 
the  other  has  been  slapped  is  epitomized  in  the  picture 
of  the  Lowly  Nazarene.  It  was  the  propounder  of 
that  doctrine  who  had  not  where  to  lay  his  head. 
Even  worse  poverty  than  that  condition  portrays  would 
be  the  result  of  a  similar  course  of  living  among  the 
criminals  of  this  sordid  age. 

Not  only  does  Tolstoy  denounce  the  church  and 
modem  Christianity  for  their  failure  to  follow  the 
Sermon  on  the  Mount  in  its  literal  meaning,  but  he 
shows  that  the  Taioists,  Buddhists,  and  the  pre- 
Christian  religions  of  deep  antiquity  taught  the  law 
of  love  as  a  great  virtue,  though  not  as  the  supreme 
blessedness,  as  he  interprets  Christ's  teachings. 

He  makes  no  exceptions  whatever  to  the  literal 
strictness  of  Matthew  v,  21,  39,  and  40,  but  gives  the 
law  of  love  an  exact,  literal,  and  definite  meaning — 
the  superlative,  unalterable  law  of  life.  This  law  is 
80  strict  that,  he  says,  it  rejects  the  whole  world- 


62  BY  RIGHT  OF  SWORD 

organization  of  government  and  church,  founded,  as 
he  maintains,  on  violence.  He  specifically  emphasizes 
the  fact  that  any  kind  of  exception  to  the  literal  inter- 
pretation destroys  the  entire  meaning  of  the  law  of 
love.  Are  the  modern  advocates  of  that  law  ready 
to  follow  the  Tolstoyan  conception  of  duty?  Other- 
wise their  abolition  of  the  gallows  is  a  mere  makeshift. 

EARLY  CHRISTIAN  MILDNESS. 

The  early  Christians  (up  to  the  fifth  century)  main- 
tained a  Tolstoyan  abnegation.  Many  went  to  the 
gallows  or  the  stake  rather  than  participate  in  wars. 
Tatian,  Athenagoras,  the  great  Origen,  Tertullian,  and 
Lactantius  opposed  war  and  every  other  kind  of  de- 
struction of  human  life.  Maximilian,  Mareellus,  and 
Cassian  were  hanged  for  refusing  to  join  the  army. 
They  contended  that,  being  Christians,  it  was  uncon- 
scionable to  fight.  But  by  the  year  416,  A.  D.,  pagans 
were  banished  from  the  Roman  armies,  and  all  Roman 
soldiers  were  Christians.  Witness  also  the  Crusades, 
which  were  military  expeditions  sent  out  by  the  Chris- 
tians of  the  West,  between  the  eleventh  and  the  thir- 
teenth centuries,  for  the  purpose  of  capturing  Palestine 
from  the  Mohammedans.  See  Tolstoy's  articles  in  the 
Fortnightly  Review,  Vol.  85,  pages  461  and  689. 

Spencer  elucidates  his  views  in  The  Data  of  Ethics, 
a  masterful  little  volume  that  is  v/orthy  of  careful 
study.  The  learned  author's  candid  examination  of 
sundry  ethical  theories  is  clarifying.  Whether  one  traces 
the  validity  of  moral  injunctions  to  an  authority  be- 
lieved to  be  of  sacred  origin,  or  whether  he  deems  a 
secular  basis  sufficient,  he  must  recognize  the  need 
of  a  regulative  system  for  human  conduct. 

It  is  shown  that  religious  creeds  all  embody  the 


A  DEFENSE  OF  CAPITAL-PUNISHMENT    63 

belief  that  right  and  wrong  are  right  and  wrong  simply 
in  virtue  of  divine  enactment.     See  Data,  page  50. 

Plato  and  Aristotle  make  state  enactments  the 
sources  of  right  and  wrong.  Hobbes  and  a  few  modern 
thinkers  subscribe  to  the  ancient  view  that  rights  are 
wholly  the  results  of  convention,  but  this  view  is  for 
the  most  part  now  regarded  as  untenable  and  incon- 
sistent. Page  52.  The  better  conception,  however,  is 
that  the  authority  of  law  is  derivative,  not  original, 
derived  from  necessity. 

Then  we  come  to  the  intuitionist  school,  who  believe 
men  have  been  divinely  endowed  with  moral  faculties. 
Spencer  maintains,  in  opposition  to  this  view,  that  all 
supposed  faculties  have  resulted  from  inherited  modi- 
fications caused  by  accumulated  racial  experiences. 
Page  55.  The  rightness  or  wrongness  of  acts  must 
finaly  be  determined  by  the  goodness  or  badness  of 
the  effects  which  flow  from  them. 

The  utilitarian  theory  of  ethics,  which  estimates 
conduct  by  observation  of  results,  is  a  part  recognition 
of  the  causation  theory.  Mr.  Spencer  contends  that 
all  current  theories  fail  to  give  proper  credit  to  causal 
connections.  They  overlook  the  necessary  relations 
between  causes  and  effects.    Page  61. 

He  then  comes  to  the  conclusion  that  the  life  of  the 
social  organism  must  ever  rank  above  the  lives  of  its 
units.  As  fast  as  a  social  state  establishes  itself,  the 
preservation  of  the  society  becomes  a  means  of  pre- 
serving its  units.  Social  self-preservation  becomes  a 
proximate  aim,  taking  precedence  of  the  ultimate  aim, 
individual  self-preservation.  Page  134.  Inadequately 
punished  trespasses  rouse  antagonisms,  and  if  these 
are  numerous  the  group  (society)  loses  coherence. 
Page  138. 


64  BY  RIGHT  OP  SWORD 

Spencer  recognizes  the  fact  that  there  is  truth  in 
the  a  priori  deductions  of  the  followers  of  abstract 
ethical  codes,  but  he  shows  that  the  fault  of  these 
speculators  is  that  they  do  not  recognize  human  nature 
as  it  is — ^the  a  posteriori  conditions  of  life.  For  the 
due  guidance  of  conduct  there  must  be  due  recognition 
of  the  functions  of  the  two  conceptions. 

ABSTRACT  ETHICAL  STANDARDS. 

There  is  an  absolute  standard  of  rectitude ;  but  with 
men  as  they  are  and  society  as  it  is,  the  dictates  of 
absolute  morality  are  not  practical.  Legal  control 
involves  infliction  of  pain  on  those  restrained  or  pun- 
ished and  on  those  who  pay  the  cost,  and  as  absolute 
morality  is  the  regulation  of  conduct  so  that  no  pain 
shall  be  inflicted,  it  might  be  argued  that  all  legal 
control  is  wrong,  which  would  lead  us  into  absurdi- 
ties. Since  legal  control  is  indispensable,  we  cannot 
escape  from  guiding  ourselves  by  the  rules  of  relative 
morality. 

Soft  conduct  on  the  part  of  offenders  will  beget  a 
softer  code.  If  you  would  abolish  the  gallows,  abolish 
murder. 

In  violent  reaction  against  the  harshness  of  punish- 
ment as  carried  on  in  the  past,  it  is  manifest  that  the 
anti-capital-punishment  advocates  are  insisting  on  a 
painless  punishment  wherein  the  lack  of  discipline  be- 
comes the  fondling  of  a  love  that  is  neither  under- 
stood nor  appreciated  by  the  criminal  mind,  nor  does 
it  do  aught  but  mischief  to  society  as  a  whole.  The 
misconduct  of  criminals  in  society  as  it  is  now  con- 
stituted cannot  be  cured,  nor  can  the  misconduct  of 
other  criminals  be  prevented  by  upholding  standards 
fit  only  for  angels — standards  of  abnegation  beyond 


A  DEFENSE  OF  CAPITAL-PUNISHMENT    65 

human  achievement.  The  effect  of  such  a  course  is 
to  produce  a  despairing  abandonment  of  aU  attempts 
at  a  higher  life.  By  association  with  rules  that  cannot 
be  obeyed,  rules  that  can  be  obeyed  lose  their  authority. 

For  a  corroboration  of  these  deductions,  see  Preface 
to  the  Data  of  Ethics. 

Those  who  would  deal  softly  with  murderers  of  the 
worst  type,  put  before  them  a  standard  of  human  per- 
fectibility that  is  unwarranted.  They  portray  human 
nature  as  it  might  exist  in  an  ideal  state,  failing  to 
deal  with  man  as  he  is,  and  with  criminals  as  they  are. 
While  the  ideal  man  is  the  standard  of  absolute  moral- 
ity, which  deals  only  with  perfect  conduct,  he  is  not 
the  creature  with  whom  criminal  codes  discharge  their 
functions.  See  chapter  on  Absolute  and  Relative 
Ethics,  in  Data  of  Ethics. 

The  co-existence  of  a  perfect  man  in  an  imperfect 
society  is  impossible.  As  well  expect  a  blue-eyed,  red- 
headed fruitarian  to  be  bom  of  a  black  cannibal 
mother  as  to  look  for  the  man  of  ideal  character  among 
the  murderers  apprehended  from  the  ranks  of  men 
having  natures  remote  from  the  ideal.  The  gallows, 
though  in  opposition  to  the  teachings  of  an  impossible 
and  highly  abstract  ethical  conception,  is  preferable 
to  a  carnival  of  murder.  We  come  back  to  the  Spen- 
cerian  dictum  that  if  extreme  penalties  are  necessary 
to  the  safety  of  society,  and  if  without  them  there 
would  be  an  increase  of  crime,  the  extreme  penalties 
are  not  contrary  to  morals.  In  other  words,  that  which 
produces  the  least  wrong  must  be  relatively  right. 
The  gallows  being  thus  justified  on  ethical  grounds,  its 
continuance  becomes,  not  a  matter  of  abstract  moral- 
ity, but  a  question  of  expediency. 


66  BY  RIGHT  OP  SWORD 

The  following  quotations  from  Spencer's  discussions 
should  be  carefully  studied  by  those  desiring  a  rational 
basis  for  their  advocacy  of  a  theory  of  government 
directly  the  opposite  of  misapplied  doctrines  of  non- 
resistance.  On  page  280  of  The  Data  of  Ethics  Spencer 
puts  the  case  thus : 

WHY  IDEAL  CONDUCT  FAILS. 

Ideal  conduct  such  as  ethical  theory  is  concerned  with, 
is  not  possible  for  the  ideal  man  in  the  midst  of  men 
otherwise  constituted.  An  absolutely  just  or  perfectly  sym- 
pathetic person  could  not  live  and  act  according  to  his 
nature  in  a  tribe  of  cannibals.  Among  people  who  are 
treacherous  and  utterly  without  scruple,  entire  truthful- 
ness and  openness  must  bring  ruin.  If  all  around  recog- 
nize only  the  law  of  the  strongest,  one  whose  nature 
will  not  allow  him  to  inflict  pain  on  others,  must  go  to 
the  wall. 

From  Herbert  Spencer's  Essays,  Scientific,  Political, 
and  Speculative,  Vol.  Ill,  page  152,  title  Prison  Ethics : 

The  two  antagonist  theories  of  morals,  like  many  other 
antagonist  theories,  are  both  right  and  both  wrong.  The 
a  priori  school  has  its  truth;  the  a  posteriori  school  has 
its  truth;  and  for  the  proper  guidance  of  conduct,  there 
must  be  due  recognition  of  both.  On  the  one  hand,  it 
is  asserted  that  there  is  an  absolute  standard  of  rectitude; 
and  respecting  certain  classes  of  actions,  it  is  rightly  so 
asserted.  From  the  fundamental  laws  of  life  and  the  con- 
ditions of  social  existence,  are  deducible  certain  impera- 
tive limitations  to  individual  action — limitations  which  are 
essential  to  a  perfect  life,  individual  and  socal;  or,  in 
other  words,  essential  to  the  greatest  happiness.  And 
these  limitations,  following  inevitably  as  they  do  from  un- 
deniable first  principles,  deep  as  the  nature  of  life  itself, 
constitute  what  we  may  distinguish  as  absolute  morality. 

On  the  other  hand  it  is  contended,  and  in  a  sense  right- 
ly contended,  that  with  men  as  they  are  and  society  as 
it  is,  the  dictates  of  absolute  morality  are  impracticable. 
Legal  control,  which  involves  infliction  of  pain,  alike  on 


A  DEFENSE  OF  CAPITAI>PUNISHMENT    67 

those  who  are  restrained  and  on  those  who  pay  the  cost 
of  restraining  them,  is  proved  hy  this  fact  to  be  not  ab- 
solutely moral;  seeing  that  absolute  morality  is  the  regula- 
tion of  conduct  in  such  way  that  pain  shall  not  be  inflicted. 
Wherefore,  if  it  be  admitted  that  legal  control  is  at  pres- 
ent indispensable,  it  must  be  admitted  that  these  a  priori 
rules  can  not  be  immediately  carried  out.  And  hence  it 
follows  that  we  must  adapt  our  laws  and  actions  to  the 
existing  character  of  mankind — that  we  must  estimate  the 
good  or  evil  resulting  from  this  or  that  arrangement,  and 
so  reach,  a  posteriori,  a  code  fitted  for  the  time  being.  In 
short,  we  must  fall  back  on  expediency. 

TWO  SIDES  TO  BE  VIEWED. 

Now,  each  of  these  positions  being  valid,  it  is  a  grave 
mistake  to  adopt  either  to  the  exclusion  of  the  other. 
They  should  be  respectively  appealed  to  for  mutual  quali- 
fication. Progressing  civilization,  which  is  of  necessity  a 
succession  of  compromises  between  old  and  new,  requires 
a  perpetual  readjustment  of  the  compromise  between  the 
ideal  and  the  practicable  in  social  arrangements:  to  which 
end  both  elements  of  the  compromise  must  be  kept  in 
view. 

If  it  is  true  that  pure  rectitude  prescribes  a  system  of 
things  too  good  for  men  as  they  are;  it  is  not  less  true 
that  mere  expediency  does  not  of  itself  tend  to  establish 
a  system  of  things  any  better  than  that  which  exists. 
While  absolute  morality  owes  to  expediency  the  checks 
which  prevent  it  from  rushing  into  Utopian  absurdities,  ex- 
pediency is  indebted  to  absolute  morality  for  all  stimulus 
to  Improvement. 

Granted  that  we  are  chiefly  interested  in  ascertaining 
what  is  relatively  right;  it  still  follows  that  we  must  first 
consider  what  is  absolutely  right,  since  the  one  concep- 
tion presupposes  the  other.  That  is  to  say,  though  we 
must  ever  aim  to  do  what  Is  best  for  the  present  time,  yet 
we  must  bear  in  mind  what  is  abstractly  best  so  that  the 
changes  we  make  may  be  towards  it,  and  not  away  from  It. 

Page  158:  To  restrain  (some  offenders)  there  must  be 
penalties  which  are  severe,  prompt,  and  specific  enough  to 


68  BY  RIGHT  OF  SWORD 

be  vividly  conceived;  while  others  (in  a  higher  state  of 
civilization)  may  be  deterred  by  penalties  which  are  less 
definite,  less  intense,  less  immediate.  For  the  more  civil- 
ized, dread  of  a  long,  monotonous  criminal  discipline  may 
suffice;  but  for  the  less  civilized  there  must  be  the  inflic- 
tion of  bodily  pain  and  death.  Thus  we  hold,  not  only  that 
a  social  system  which  generates  a  harsh  form  of  govern- 
ment, also  generates  harsh  retribution;  but  also,  that  in 
Buch  social  conditions,  harsh  retributions  are  requisite. 
And  there  are  facts  which  illustrate  this.  Witness  the 
case  of  one  of  the  Italian  states,  in  which  the  punishment 
of  death  having  been  abolished  in  conformity  with  the  wish 
of  a  dying  duchess,  assassinations  increased  so  greatly  that 
it  became  needful  to  re-establish  it. 

Besides  the  fact  that  in  the  less  advanced  stages  of 
civilization,  a  bloody  penal  code  is  both  a  natural  product 
of  the  time  and  a  needful  restraint  for  the  time,  there  must 
be  noted  the  fact  that  a  more  equitable  and  humane  code 
could  not  be  carried  out  from  want  of  fit  administration. 
To  deal  with  delinquents  not  by  short  and  sharp  methods 
but  by  such  methods  as  abstract  justice  indicates,  implies 
a  class  of  agencies  too  complicated  to  exist  in  a.  low  society, 
and  a  class  of  officers  more  trustworthy  than  can  be  found 
among  its  citizens.  Especially  would  the  equitable  treat- 
ment of  criminals  be  impracticable  where  the  amount  of 
crime  was  very  great.  The  number  to  be  dealt  with  would 
be  unmanageable.  Some  simpler  method  of  purging  the 
community  of  its  worst  members  becomes,  under  such  cir- 
cumstances,  a  necessity. 

The  inapplicability  of  an  absolutely  just  system  of  penal 
discipline  to  a  barbarous  or  a  semi-barbarous  people,  is 
thus,  we  think,  as  manifest  as  is  the  inapplicability  of  an 
absolutely  just  forrd  of  government  to  them.  And  in  the 
same  manner  that,  for  some  nations,  a  despotism  is  war- 
ranted, so  may  a  criminal  code  of  the  extremest  severity 
be  warranted. 

Page  159:  "However  inequitable  in  the  abstract  were 
the  beheadings,  crucifyings,  and  burnings  of  ruder  ages, 
yet,  if  it  be  shown  that,  without  penalties  thus  extreme,  the 
safety  of  society  could  not  have  been  insured — if,  in  their 


A  DEFENSE  OF  CAPITAL-PUNISHMENT     69 

absence,  the  increase  of  crime  would  have  inflicted  a  larger 
total  of  evil,  and  that,  too,  on  peaceable  members  of  the 
community;  then  it  follows  that  morality  warranted  this 
severity.  In  the  one  case,  as  in  the  other,  we  must  say 
that,  measured  by  the  quantities  of  pain  respectively  in- 
flicted and  avoided,  the  course  pursued  was  the  least  wrong; 
and  to  say  that  it  was  the  least  wrong  is  to  say  that  it  was 
relatively  right. 

ABOUT  ULTIMATE  AIMS. 

Page  165:  If  life  Is  our  legitimate  aim — if  absolute 
morality  means,  as  it  does,  conformity  to  the  laws  of  com- 
plete life;  then  absolute  morality  warrants  the  restraint 
of  those  who  force  their  fellow-citizens  into  non-conformity. 
Our  justification  is,  that  life  is  impossible  save  under  cer- 
tain conditions;  that  it  can  not  be  entire  unless  these  con- 
ditions are  maintained  unbroken;  and  that  if  it  is  right 
for  us  to  live  completely,  it  Is  right  for  us  to  remove  any 
one  who  either  breaks  these  conditions  in  our  persons  or 
constrains  us  to  break  them.  Such  being  the  basis  of  our 
right  to  coerce  the  criminal,  what  is  the  legitimate  extent 
of  the  coercion?     Only  what  is  necessary  to  suppress  crime. 

Page  169:  Spencer  here  says  it  is  the  business  of 
society  to  defend  itself  against  the  prisoner.  If  he 
has  to  work  hard  and  fare  scantily,  these  evils  must 
be  counted  among  the  penalties  of  his  transgression — 
the  natural  reactions  of  his  wrong. 

THE  TREATMENT  OP  CRIMINALS. 

Coming  to  the  application  of  this  law  to  the  treat- 
ment of  criminals,  the  great  synthetic  philosopher  an- 
nounces that  the  same  average  popular  character  which 
necessitates  a  rigorous  form  of  government,  necessi- 
tates also  a  rigorous  criminal  code.  Institutions  are 
ultimately  determined  by  the  natures  of  the  citizens 
living  under  them.  When  citizens  are  impulsive  and 
unscrupulous  they  will  need  severe  forms  of  punish- 


70  BY  RIGHT  OF  SWORD 

ment.  The  character  which  originates  and  sustains 
political  liberty,  is  a  character  not  at  the  mercy  of 
immediate  temptations,  but  one  which  contemplates 
the  consequences  of  the  future.  On  the  other  hand, 
men  who  dwell  only  in  the  present,  the  special,  the 
concrete,  will  put  little  value  on  those  rights  of  citizen- 
ship which  profit  them  nothing. 

The  mercenary  murderer,  the  hired  assassin,  is  a  con- 
centrated example  of  the  man  who  lives  in  the  con- 
crete, the  present,  the  special — who  lives  for  sordid 
and  wicked  selfishness  only — and  lives  in  this  wicked- 
ness even  to  the  extent  of  slaughtering  the  innocent 
in  the  most  cruel  and  inhuman  manner  for  a  mess  of 
pottage.  No  new  notions  of  brotherly  love  and  refor- 
mation are  applicable  to  this  class.  These  belong  to 
the  jurisdiction  of  the  Destroying  Angel  of  history. 

In  another  way.  Sir  Leslie  Stephen,  in  his  remark- 
ably comprehensive  volume,  The  Science  of  Ethics, 
comes  to  the  same  conclusion.  On  page  413  he  says: 
"Against  some  people,  in  short,  the  only  effective 
arguments  are  the  gallows  or  the  prison.  Unluckily 
they  are  arguments  which  cannot  be  brought  to  bear 
with  all  the  readiness  desirable,  and  therefore  I  think 
it  highly  probable  that  there  will  be  bad  men  for  a 
long  time  to  come." 

THE  MURDERER'S  AROUMENT. 

On  the  preceding  page,  in  passing,  it  may  be  noted 
that  he  says:  "The  cold-hearted  and  groveling  nature 
has  an  argument  which,  from  its  own  point  of  view, 
is  not  only  vicious  in  practice,  but  logically  unanswer- 
able. Not  only  is  it  impossible  to  persuade  people 
to  do  right  always,  but  there  is  no  argument  in  exist- 


A  DEFENSE  OF  CAPITAI>PUNISHMENT    71 

ence,  which,  if  exhibited  to  them,  would  always  appear 
to  be  conclusive." 

He  cites  the  downright  selfishness  of  a  torpid  nature 
that  is  not  moved  by  sympathy  or  like  considerations — 
a  man  who  steals  or  murders  because  he  desires  to 
gratify  his  senses,  regardless  of  the  misery  and  starva- 
tion of  others,  their  sorrows,  and  their  right  to  live. 
It  is  against  such  men  that  the  argument  of  the  gallows 
is  invoked  by  Sir  Leslie,  whose  work  is  one  of  the 
ablest  ever  written  on  the  science  of  ethics.  He  shows 
that  recognition  of  the  fact  that  "murderers  are  liable 
to  be  hanged"  does  not  deter  all  men  from  murdering, 
because  the  recognition  of  the  general  proposition  in- 
volved in  the  death  penalty  will  operate  differently 
according  to  a  man's  character.  He  adds:  "If  it  is 
a  general  recognition,  involving  a  realization  of  all  the 
facts  implied,  it  is  but  the  logical  aspect  of  an  emo- 
tional process,  which  is  symbolized  by  the  words  mur- 
derers are  liable  to  be  hanged.  He  must  have  a  fore- 
taste of  the  various  horrors  connected  with  hanging; 
and  the  painful  foretaste  of  an  appearance  on  the 
gallows  will  struggle  with  the  pleasurable  foretaste 
of  gratified  revenge,  and  determine  his  conduct.  For 
him,  the  terror,  the  hatred,  are  facts;  actual  forces 
which  move  him  one  way  or  the  other,  and  which  are 
rendered  possible  by  intellectual  foresight,  as  it,  again, 
is  only  possible  through  them ;  that  is,  neither  of  them 
could  exist  separately."     Stephen,  page  423. 

On  page  426  the  learned  author  says  that  the  high- 
est penalty  of  the  law — the  death  penalty — depends 
for  efficacy  on  the  love  of  life,  which  of  course  is 
almost  universal  and  ever  tenacious;  but  there  may 
be  cases  in  which  a  man  ceases  to  care  for  life,  and  so 
far  be  beyond  the  power  of  the  legislator.    Again, 


72  BY  RIGHT  OF  SWORD 

unless  a  man  has  certain  sensibilities — which  murder- 
ers have  not — the  moralist,  the  teacher  of  the  law  of 
love  and  kindness,  has  no  leverage.  If  a  man  is  with- 
out conscience  you  cannot  move  him  by  speaking  of 
right  and  wrong.  Many  men  are  wicked;  no  man  is 
perfect — and  no  dexterous  logic  will  make  the  wicked 
good,  nor  so  long  as  it  appeals  to  motives  which  they 
cannot  appreciate,  will  it  convince  them  that  it  is  well 
to  be  good.     Stephen,  page  427. 

On  page  438  Stephen  says:  ''The  punishment  is 
proportioned  to  the  offense.  How  is  the  proportion 
to  be  determined?  Surely  the  perfection  of  human 
justice  is  measured  by  its  efficiency.  That  system  is 
best  which  most  diminishes  crime." 

On  page  441,  he  says:  "A  man  will  refrain  from 
conduct  if  he  fears  to  be  punished,  whether  the  pun- 
ishment dreaded  is  to  come  from  a  real  or  an  imag- 
inary being.  The  fear  of  hell,  so  long  as  people  be- 
lieve in  hell,  may  be  a  genuine  restraint  just  as  much 
as  the  fear  of  the  gallows." 

It  will  be  seen  that  this  is  a  far  different  rule  from 
that  which  holds  that  the  main  object  of  penal  insti- 
tutions is  the  reformation  of  the  criminal.  Let  us  now 
go  more  deeply  into  the  philosophy  of  punishment, 
analyzing  every  one  of  the  theories  recognized  by 
philosophers,  theologians,  and  others. 


CHAPTER  III. 

The  Philosophy  of  Punishment 

AN  examination  of  the  modem  arguments  against  cap- 
ital-punishment reveals  the  fact  that  four  marked 
attacks  are  made  on  the  gallows — the  first  on  the 
ground  that  the  state  has  no  moral  right  to  take  life, 
since  it  did  not  give  it;  the  second,  that  capital-pun- 
ishment does  not  deter  other  murderers  from  plying 
their  bloody  trade;  the  third,  that  the  taking  of  a 
human  life,  even  in  obedience  to  a  judicial  decree,  is 
demoralizing;  the  fourth,  that  the  murderer  is  a  vic- 
tim of  unjust  social  conditions,  for  which  reason  he 
should  be  pitied  and  reformed.  The  first  two  objec- 
tions will  presently  be  discussed  in  detail. 

The  third  objection  is  purely  mythical,  since  Eng- 
land and  some  other  countries  where  capital-punish- 
ment is  strictly  enforced  exhibit  a  more  sacred  regard 
for  human  life  than  is  found  in  America  and  other 
lands  where  punishment  for  murder  is  neither  swift, 
sure,  nor  drastic.  The  fourth  objection  is  based  on  a 
total  misconception  of  the  functions  of  the  state  and 
of  the  philosophy  underlying  rewards  and  punish- 
ments in  general,  as  will  be  shown  further  along. 

As  to  the  right  of  society  to  go  to  extremes  to  pro- 
tect itself,  as  already  shown,  there  can  be  no  valid 
objection,  if  it  be  admitted,  as  it  must  be,  that  the 
lives  of  all  the  people  are  more  sacred  than  the  lives 
of  the  wicked  minority. 

72 


74  BY  RIGHT  OF  SWORD 

The  late  Doctor  Ray  Madding  MeConnell,  for  many 
years  instructor  in  social  ethics,  at  Harvard,  has  given 
a  beautiful  example  illustrating  the  fact  that  society 
may  even  be  justified  in  taking  the  life  of  an  innocent 
person,  in  order  to  save  the  lives  of  many  others  who 
are  equally  innocent. 

Suppose  the  case  of  a  city  surrounded  by  warships. 
The  commander  demands  the  surrender  of  a  man  ac- 
cused of  being  a  spy.  It  is  positively  known  that  he 
was  not  a  spy,  and  that  to  surrender  him  is  to  send 
him  to  the  executioner's  block;  yet  the  city  is  defense- 
less. It  is  given  twenty-four  hours  in  which  to  sur- , 
render  the  suspect,  the  alternative  being  bombard- 
ment. The  bombardment,  beyond  all  question,  will 
kill  thousands  of  innocent  men,  women,  and  children. 
Will  anybody  say  that  the  surrender,  under  such  cir- 
cumstances, would  be  an  unrighteous  taking  of  life? 
The  surrender  becomes  necessary  as  an  expedient,  un- 
der the  law  of  self-defense,  and  on  the  theory  that  the 
whole  is  more  important  than  any  of  its  parts. 

Similarly,  if  the  infliction  of  the  law's  gravest  pen- 
alty in  the  case  of  a  murderer  deters  other  criminals 
from  committing  murder,  the  killing  is  justifiable.  It 
is  contended  by  some  disputants  that  capital-punish- 
ment does  not  deter  from  crime.  As  Herbert  Spencer 
and  others  have  shown,  there  is  little  value  in  negative 
statistics,  even  if  they  exist.  In  this  case,  however, 
the  statistics  point  positively  to  the  opposite  con- 
clusion, as  shown  in  cases  heretofore  cited.  It  must 
be  admitted  that  nobody  can  go  into  the  criminal 
heart  and  gather  statistics  of  the  number  of  murders 
that  have  not  been  committed  because  of  the  gallows. 
The  author  of  this  work  has  met  many  men  in  his 
time  who  have  assured  him  that,  but  for  the  gallows, 


A  DEFENSE  OF  CAPITAL-PUNISHMENT      75 

they  would  have  slain  their  enemies — and  some  of 
these  men  have  been  far  above  the  ordinary  criminal 
in  moral  fiber  and  intellectual  training.  ' 

Just  how  far  either  penitentiaries  or  gallows  may 
prevent  crime  can  never  be  known.  The  country  is 
full  of  penitentiaries,  jails,  criminal  courts,  policemen, 
and  detectives.  Crime  continues,  and  even  increases 
Shall  we  therefore  abandon  courts  and  penitentiaries, 
policemen,  and  the  penal  code?  Yes,  if  we  heed  the 
same  kind  of  argument  that  is  made  against  the  gal- 
lows. If  the  gallows  must  be  torn  down  because  mur- 
derers still  haunt  the  world,  then  penitentiaries  must 
be  destroyed  because  burglary  and  highway  robbery 
still  exist,  or  even  increase.  Who  knows  how  many 
more  robberies,  how  many  more  murders  would  occur 
if  the  gallows  and  the  penitentiaries  were  abandoned! 

The  argument  is  sometimes  made  that  capital-pun- 
ishment causes  an  increase  of  murder.  Has  anybody 
ever  seen  a  man  who  committed  murder  because  he 
felt  sure  he  would  be  hanged  for  the  deed?  If  it  be 
argued  that  the  extension  of  a  sentimental  fad  is  tak- 
ing the  backbone  out  of  some  men,  and  that  we  have 
no  longer  enough  men  of  determined  character  to 
enforce  the  just  laws  of  the  land,  it  is  not  a  failure 
of  the  gallows,  but  a  failure  of  manhood.  It  would 
not  be  a  failure  of  the  gallows,  but  a  failure  to  use 
thje  gallows,  that  would  blight  the  reign  of  law  and 
order. 

The  Reverend  Father  John  J.  Ford,  S.  J.,  of  the 
University  of  Saint  Ignatius,  San  Francisco,  has  shown 
that  even  if  it  were  proved  that  the  abolition  of  cap- 
ital-punishment had  been  followed  by  a  decrease  of 
crime,  it  would  not  follow  that  the  decrease  was  be- 
cause of  the  abolition.    After  this,  therefore,  because 


76  BY  RIGHT  OF  SWORD 

of  this  (the  invalid  post  hoc,  ergo  propter  hoc  attribu- 
tion of  a  false  cause  to  a  result),  is  in  opposition  to 
the  fundamental  principles  of  logic. 

Crime  is  diminished  by  precautionary  measures — 
greater  skill  and  vigilance  of  the  police,  better  lighted 
streets,  better  moral  instruction  of  children,  and  a  les- 
sening of  misery  and  poverty,  of  drunkenness  and  de- 
bauchery. Father  Ford  concludes  thus:  "If  it  could 
be  shown  that  the  number  of  murders  had  been  dimin- 
ished because  capital-punishment  had  been  abolished, 
this  would  not  make  for  the  contention  of  the  oppo- 
nents. It  would  merely  go  to  prove,  according  to 
strict  logic,  that  capital-punishment,  by  which  murder 
was  formerly  punished,  was  a  lesser  punishment  than 
imprisonment,  with  a  chance  of  being  paroled  or  par- 
doned, and  that,  instead  of  deterring  men  from  crime, 
it  rather,  by  some  mysterious  allurement,  the  secret 
of  which  is  known  only  to  the  abolitionists,  incited 
men  to  crime." 

It  should  also  be  borne  in  mind  that  any  decrease 
of  crime — and  there  has  seldom  been  a  decrease  of  any 
consequence  in  this  country — must  be  traced  to  other 
causes  than  the  penalty  of  life  imprisonment,  especial- 
ly if  the  interval  of  time  between  the  periods  of  com- 
parison be  long. 

Several  references  have  been  made  to  the  late 
Doctor  McConnell's  masterful  work,  Criminal  Respon- 
sibility and  Social  Constraint.  It  is  generally  re- 
garded as  a  classic  on  the  subject  it  essays.  It  is  a 
brilliant  analysis  of  the  entire  subject  of  crime  and 
its  punishment.  Every  discussion  is  presented  with 
the  utmost  point  and  explicitness.  A  work  so  admir- 
ably articulated,  so  comprehensive  in  its  presentation 
of   every   aspect   of   the    question,   should   be    better 


A  DEFENSE  OF  CAPITAL-PUNISHMENT      77 

known  to  the  general  public.  The  treatment  is  philo- 
sophic and  practical  in  every  particular.  The  learned 
author  discusses  the  aim  of  punishment,  freedom  in 
crime,  and  responsibility  for  crime.  He  is  particularly 
helpful  in  discussing  the  general  purpose  of  punish- 
ment. He  considers  in  turn  each  of  the  many  theories, 
by  first  stating  the  theory  and  the  grounds  on  which 
it  is  based,  then  the  objections  to  it.  The  reader  thus 
has  at  the  outset  the  point  of  view  commonly  pre- 
sented by  the  lawyer,  the  sociologist,  the  moralist,  the 
priest,  the  physician,  the  eugenist,  the  policeman,  the 
soldier,  and  even  of  the  criminal  himself. 

Expiation,  retribution,  deterrence,  reformation, 
social  utility,  freedom  in  crime,  and  responsibility  for 
crime  are  next  so  presented  that  the  work  becomes  a 
treatise  on  the  philosophy  of  punishment,  for  it  dis- 
cusses the  psychology  of  will,  motive,  and  choice — the 
nature  of  causation,  with  particular  freshness  and  mas- 
terful grasp.  It  also  epitomizes  the  literature  of  the 
general  subject. 

OBJECTS  OF  PUNISHMENT  IN  DETAIL. 

At  the  conclusion  of  his  analysis  the  reader  feels 
that  an  X-Ray  has  been  turned  upon  the  subject.  The 
author  concludes  that  there  is  a  difference  between 
social  and  metaphysical  accountability  in  crime,  and 
he  regards  repression  (deterministically),  and  even 
the  gallows,  necessary  to  prevent  crime. 

It  becomes  interesting  to  ask,  at  the  outset.  What  is 
the  object  of  punishment  in  general?  It  is  shown  that 
the  handling  of  crime  in  the  United  States  costs  almost 
as  much  as  to  maintain  the  public  schools.  It  exceeds 
the  cost  of  conserving  health,  maintaining  highways, 
parks,  and  playgrounds.     The  thoughtful  man  won- 


78  BY  RIGHT  OP  SWORD 

ders,  sometimes,  what  return  society  gets  from  this 
enormous  investment.  How  far  it  suppresses  crime, 
protects  society,  or  reforms  the  evil-doer,  is  always  a 
mystery.  Here  are  the  answers  commonly  given  to 
the  question.  What  is  the  object  of  punishment? 

1.  The  lawyer  says  punishment  is  to  compensate 
for  damage  and  prevent  further  damage  to  society. 

2.  Sociologists  say  punishment  is  to  restore  the 
social  equilibrium  and  prevent  future  disturbances. 

3.  Modem  psychologists  say  punishment  works  on 
the  memory  of  the  criminal  and  of  others  who  hear 
of  the  punishment  and  are  thereby  deterred  from  com- 
mitting similar  crimes. 

4.  Moralists  would  rouse  the  culprit  to  remorse, 
repentance,  and  subsequent  reformation, 

5.  The  priest  says  punishment  is  to  expiate  for  sin, 
to  make  atonement  to  God,  the  moral  governor  of  the 
universe,  through  the  suffering  of  the  wicked  offender. 

6.  Physicians  say  punishment  is  to  eradicate  plague 
spots  from  the  criminal's  mind,  also  to  prevent  a 
spreading  of  the  plague  in  such  a  way  as  to  infect 
society. 

7.  The  eugenist  believes  punishment  is  a  means  of 
purifying  the  race  and  creating  the  best  social  type. 
He  would  extirpate  the  units  that  have  degenerated. 

8.  Policemen  say  punishment  is  to  frighten  the  of- 
fender and  instill  fear  in  the  minds  of  others  inclined 
to  criminal  deeds — ^practically  the  legal  and  deterrent 
view. 

It  will  be  noted  at  the  outset  that  there  seems  no 
general  agreement  as  to  whether  punishment  should 
be  retrospective  or  prospective,  whether  to  requite  for 
an  evil  past  or  mold  a  better  future.  Doctors  of  the 
civil  law  differ  as  to  the  pfurpose  of  their  prescriptions. 


A  DEFENSE  OF  CAPITAL-PUNISHMENT      79 

Sundry  differences  also  exist  in  the  ranks  of  all  classes 
of  thinkers  who  have  tried  to  solve  this  persisting 
problem.  These  differences  are  largely  because  pun- 
ishment is  an  instrument  that  has  been  developing  for 
thousands  of  years,  an  instrument  that  is  destined  to 
undergo  vital  changes  with  the  changes  of  civilization 
and  the  passing  away  of  old  economic  systems,  for 
Emerson  was  right  in  saying  that  crime  and  punish- 
ment grow  from  the  same  stem. 

Punishment  is  an  instrument  of  infinitely  complex 
growth.  In  spite  of  the  differences  that  divide  think- 
ers who  try  to  formulate  systems  of  penology,  it  will 
be  seen  that  all  variations  in  the  objects  of  punishment 
come  under  four  great  types — expiation,  retribution, 
deterrence,  and  reformation.  This  is  particularly  true 
of  the  older  views.  Punishment  for  social  utility,  how- 
ever, embraces  some  of  the  elements  of  the  four  ob- 
jects, adding  another. 

Though  there  is  an  element  of  truth  in  almost  every 
theory,  it  seems  impossible  to  restHct  punishment  to 
any  one  definite  aim.  Its  purpose  is  complex,  the  cen- 
tral object  being  for  social  utility.  McConnell  says 
(page  .114) ; 

Punishment  is  g^ven  for  social  defence,  for  social  pro- 
tection, for  social  security,  for  ttie  prevention  of  disturb- 
ance in  the  economic,  political  and  general  social  order, 
for  the  realization  of  the  social  ideal,  for  the  promotion 
of  the  general  well-being,  for  the  attainment  of  the  great- 
est happiness  of  the  greatest  number. 

It  will  be  noticed  that  all  of  these  relinquish  the  idea 
of  concern  with  the  individual  per  se.  Punishment  does 
not  function  as  a  spiritual  guide  for  the  individual.  Its 
object  is  not  moral  or  religious  goodness.  It  is  not  con- 
cerned with  individual  personal  virtue.  Its  notion  is  wholly 
social.  It  is  justified  on  account  of  its  utility,  its  neces- 
sity for  the  intercourse  of  men.  It  is  given  because  es- 
sential to  the  preservation  of  organized  society.  If  crime 
were  not  subjected  to  corrective  discipline  in  a  regular  and 
orderly  way  by  the  collective  authority,  society  would  soon 


80  BY  RIGHT  OF  SWORD 

become  disorganized.  Punishment  is  necessary  in  order 
to  enable  people  to  carry  on  business  peaceably,  to  live 
in  security,  and  to  enjoy  life.  The  system  of  social  rights 
and  obligations  can  be  maintained  only  through  aflBictive 
penalties.  The  criminal  violates  the  conditions  of  the  gen- 
eral well-being;  and  in  so  far  as  he  injures  the  common 
good,  he  forfeits  his  rights  at  the  hands  of  the  public. 
His  punishment  is  justified  by  its  social  necessity.  Thus 
society  resembles  a  mutual  assurance  association,  in  which 
the  members  unite  their  strength  against  a  common  dan- 
ger, and  insure  each  other  against  harm.  It  must  elim- 
inate what  is  prejudicial  to  its  existence.  The  degree  of 
the  dangerousness  of  the  criminal  is  the  consideration  by 
which  society  should  be  guided  in  determining  the  correct- 
ive treatment  for  him.  Punishment,  therefore,  has  no 
meaning  except  as  intended  to  secure  the  greater  and  more 
perfect  organization  of  society.  *  *  So  far  as  social  pro- 
tection is  concerned,  expiation  may  be  a  matter  of  indif- 
ference. Let  injuries  to  the  gods  be  the  concern  of  the 
gods. 

AS  TO  SOCIAL  ACCOUNTABILITY. 

In  answer  to  the  theory  that  crimmals  are  not  social- 
ly accountable,  it  is  contended  that  the  essential  and 
sufficient  condition  of  accountability  is  that  the  crim- 
inal act  emanates  from  the  person  himself — a  caused 
cause,  under  the  doctrine  of  fate,  determinism,  hered- 
ity, and  environment  as  determining  factors  that  de- 
stroy free  will,  yet  nevertheless  a  cause.  Thus  social 
accountability,  individual  responsibility,  is  based  on 
personal  authorship  of  crime,  and  not  on  the  idea  of 
freedom  of  the  will.  This  freedom  of  the  will  notion, 
holding  the  universe  responsible  and  excusing  the 
criminal,  is  so  obscure  and  so  variously  understood  by 
different  people,  that  it  is  incapable  of  service  iij 
penology.  No  one  is  at  all  sure  where  freedom  be- 
gins and  determinism  (fate)  leaves  off.  I  know  that 
when  I  accomplish  something  because  it  is  in  line  with 
my  desires,  habits,  appetites,  ideas,  it  is  I  who  do  it; 
For  this  I  am  responsible  to  society.  See  McConnell, 
page  321,  for  more  complete  discussion. 


A  DEFENSE  OF  CAPITAL-PUNISHMENT      81 

McConnell  continues,  In  part  as  follows:  "The  reason 
for  holding  a  man  socially  responsible  for  injuries  inflicted 
by  him  is  not  that  he  could  have  refrained  and  ought  to 
have  refrained  from  them.  We  know  that  every  act  of  his 
was  inevitably  necessitated  and  could  not  have  been  dif- 
ferent. The  real  ground  for  social  constraint  is  that  ot 
social  utility.  Any  being  whatever  whose  acts  are  in- 
jurious to  society  is  made  to  answer  for  them,  is  dealt 
with  in  whatever  way  promises  to  be  most  appropriate  for 
the  protection  of  society  in  the  futurp.  Such  treatment 
is  not  strictly  punishment,  but  it  is  simply  social  thera- 
peutics and  hygiene.  It  needs  no  other  justification  than 
this.  Most  assuredly,  the  legal  treatment  of  crime  can 
not  be  justified  on  the  basis  of  'moral  responsibility  and 
freedom  of  will';  for  such  freedom  and  responsibility  do 
not  exist.  It  can  be  justified,  and  is  justified,  solely  on 
grounds  of  social  utility.  In  punishing  the  criminal,  so- 
ciety Is  taking  precautions  in  self-defence.  Whether  a 
damage-doer  is  endowed  with  free  will  or  not.  It  is  just 
for  him  to  be  punished  so  far  as  is  necessary  for  social 
protection,  as  it  is  just  for  a  wild  beast  to  be  put  to  death 
(without  unnecessary  suffering)    for  the  same  purpose." 

On  page  334  the  learned  author  says:  "Scientific  pro- 
cedure will  be  adjusted  to  the  peculiar  character  of  the  in- 
dividual criminal.  In  the  application  of  punishment  at- 
tention will  be  paid  to  modifying  it  -according  to  the  men- 
tal and  physical  condition  of  the  patient.  *  *  The  reform- 
able  will  be  reformed;  while  the  incorrigible  and  incurable 
will  be  held  fast  the  remainder  of  their  days.  *  •  The 
wild  beast  of  a  man  will  be  kept  in  prison  for  life  or  put 
to  death." 

On  page  121  McConnell  says:  "Elimination,  either  ab- 
solute or  relative,  may  be  Justified  in  the  case  of  incor« 
rigible  criminals."  Of  course,  absolute  elimination  is  a 
euphemistic  phrase  meaning  the  death  penalty. 

.  A  brief  account  of  the  usually  advocated  objects  of 
punishment  is  not  out  of  place,  for  it  will  tend  to 
clarify  the  entire  subject  of  penology: 

The  punitive  advocates  of  the  theory  of  expiation 
regard  punishment  as  the  expiation  of  a  moral  wrong 
or  a  religious  sin.  Their  theory  is  that  the  crime  has 
injured  the  moral  order,  hence  it  must  be  chastised  in 
the  person  of  the  criminal,  since  punishment  is  a  recti- 
fication of  that  moral  order  which  crime  has  broken. 
Punishment  is  inflicted,  not  from  bitter  vindictiveness, 


82  BY  RIGHT  OF  SWORD 

but  as  representing  that  which  is  the  very  foundation 
of  the  moral  universe.  The  public  must  feel  that  guilt 
is  an  evil  which  reacts  on  the  guilty  who  have  offended 
the  righteous  universal  will.  There  is  a  necessary  rela- 
tion between  guilt  and  pain.  Crime  is  an  offense 
against  God,  who  demands  chastisement  of  the  of- 
fender, the  moral  leper.  God  can  not,  in  his  absolute 
wisdom  and  justice,  allow  a  guilty  sinner  to  escape, 
else  his  authority  would  crumble.  If  the  Moral  Gov- 
ernor of  the  universe  should  permit  wrong  to  go  un- 
punished, then  the  whole  moral  universe  would  crum- 
ble to  pieces  and  the  world  would  become  the  abode 
of  demons.  Human  laws  must  be  based  on  the  divine 
law,  which  makes  the  guilty  suffer,  since  human  laws 
are  only  a  replica  of  divine  injunctions. 

The  objections  to  this  theory  are  that  punishment, 
under  human  codes,  can  not  be  meted  out  as  God's 
justice,  because  the  man-made  codes  can  not  punish 
for  immoral  or  irreligious  deeds,  for  dark  and  criminal 
thoughts,  but  only  for  overt  acts  that  break  the  social 
harmony.  Human  laws  have  to  do  with  anti-social 
deeds  only.  Expiation  looks  to  the  past,  whereas  hu- 
man penal  codes  must  look  to  the  future.  In  other 
words,  thieves  would  not  be  lodged  in  penitentiaries 
if  such  lodgments  did  not  deter  others  from  theft. 
Society  can  not  inflict  punishment  for  intentions,  only 
for  overt  acts,  coupled  with  criminal  intent. 

RETRIBUTIVE  JUSTICE  ANALYZED. 

The  retributive  justice  conception  of  punishment  de- 
mands that  a  person  who  commits  crime  shall  be  made 
to  suffer,  whether  his  suffering  subserves  any  other 
end  than  suffering,  or  not.  In  other  words,  it  would 
inflict  punishment  for  the  sake  of  punishment.    If  this 


A  DEFENSE  OF  CAPITAL-PUNISHMENT      83 

be  not  the  motive,  then  some  crimes  would  escape 
punishment.  If  a  man  should  commit  a  fiendish  mur- 
der in  a  South  Sea  Colony  that  was  about  to  disband, 
for  example,  and  if  each  member  were  to  go  to  his  own 
country,  the  deterrent  argument  would  not  be  appli- 
cable, since  there  would  be  no  one  left  on  the  island 
to  be  deterred.  The  murderer,  having  become  par- 
alyzed, can  not  commit  any  further  murder.  He  is  in- 
corrigible and  feels  no  compunction  for  his  crime,  so 
all  thought  of  reformation  is  ridiculous.  If  this  man 
is  to  be  punished  at  all,  since  the  usual  motives  are 
excluded  in  the  supposititious  case,  it  must  be  on 
grounds  of  retribution.  Punishment  of  this  man  would 
satisfy  the  natural  resentment  of  the  community.  If 
the  public  can  not  express  its  indignation  in  this  case, 
a  strong  and  justifiable  emotion — the  demand  for 
retributive  justice — will  be  suppressed,  and  society 
will  feel  that  it  has  been  outraged. 

Under  the  retributive  idea,  punishment  is  an  ex- 
pression of  righteous  public  indignation.  It  gratifies 
a  strong  general  desire  for  retaliation.  Pain  must  fol- 
low wrong-doing  as  an  expression  of  social  resentment, 
a  sentiment  so  universal  and  natural  among  all  men 
that  retributive  justice  must  be  founded  in  right. 
Retribution  is  an  instinct  of  all  animal  life.  Strike  an 
animal  or  a  man,  and  retaliation  naturally  follows. 
The  animal  bites  back,  the  man  retorts  blow  for  blow. 
Vengeance  is  thus  a  biological  necessity,  the  basis  of 
the  survival  of  the  individual  and  the  species.  He  who 
strikes  another  may  expect,  by  natural  and  social  laws, 
to  be  struck  in  return.  It  is  the  sense  of  retributive 
justice  that  rejoices  when  the  burglar  is  imprisoned, 
that  extends  the  hand  of  sympathy  when  an  innocent 
man  suffers.    Judgments  either  too  light  or  too  severe 


84  BY  RIGHT  OF  SWORD 

outrage  our  sense  of  retributive  justice.  In  other 
words,  retributive  justice  demands  that  the  punish- 
ment fit  the  crime.  Scott  puts  the  thought  thus: 
"But  each  word  against  his  honor  spoke,  demands  of 
me  avenging  stroke." 

The  objections  to  this  theory  are  that  revenge  is 
unworthy  of  society  or  the  person  punishing  the 
offender.  The  criminal,  say  these  advocates,  is  dis- 
eased. He  needs  a  hospital  rather  than  a  prison.  The 
developed  moral  consciousness  can  not  inflict  pain, 
even  on  a  criminal.  Must  society  lie  to  the  liar, 
deceive  the  deceiver,  and  betray  the  traitor?  Vin- 
dictiveness  and  retribution  exceed  the  demands  of 
justice.  Bad  acts  call  for  good  in  return.  Revenge 
is  not  a  proper  principle  in  social  action.  One  evil 
can  not  cure  another.  "Punishment  degrades  those 
who  inflict  it  to  the  level  of  the  culprit,  for  punish- 
ment is  only  a  brutal  and  passionate  reaction."  The 
criminal  merits  pity,  not  cruelty  or  severity.  He  is 
not  a  free  agent.  He  is  a  product  of  abnormal 
biological  conditions  and  adverse  social  circumstances. 
He  is  a  victim  of  environment.  Criminals  and  wild 
human  beasts  should  be  treated  with  pity  and  in- 
dulgence. Retribution  punishes  for  the  past,  but  so- 
ciety's only  warrant  and  regard  are  for  the  future. 
Severity  only  fans  the  fire  of  criminal  mania. 

It  wiU  be  seen  that  this  is  a  sublimated  view,  based 
on  the  theory  of  human  perfectibility,  as  if  men  were 
angelic  and  the  law  of  non-resistance  were  universal, 
because  of  universal  goodness. 

DETERRENCE  AS  AN  OBJECT. 

Deterrence  as  a  principal  object  of  punishment  has 
long  played  an  important  part  in  the  philosophy  of 


A  DEFENSE  OF  CAPITAL-PUNISHMENT      86 

the  law  of  every  country.  Under  this  conception, 
punishment  is  inflicted,  not  because  wrong  has  been 
done,  but  in  order  that  wrong  may  not  be  done.  As 
an  old  Calif omian  alcalde  (judge)  once  said,  "We 
hang  men,  not  for  stealing  horses,  but  that  horses  be 
not  stolen."  In  other  words,  deterrence  means  fear, 
intimidation,  the  preventing  of  others  than  the  criminal 
from  sharing  his  fate,  as  well  as  giving  the  offender 
a  lesson  that  may  prevent  future  offenses  by  him. 
Though  the  number  of  criminals  susceptible  of  reform 
is  less  than  a  third  of  those  convicted,  it  is  said  that 
deterrence  has  some  value,  even  in  the  case  of  the 
offender  himself.  It  is  well  known  that  the  fear  of 
punishment  holds  many  men  within  the  letter  of  the 
law.  Under  deterrence,  punishment  is  prospective 
rather  than  retrospective — just  the  opposite  of  retribu- 
tive punishment,  which  demands  its  pound  of  flesh  for 
broken  obligations  to  society. 

Many  of  the  objections  to  the  theory  of  deterrence 
are  based  on  metaphysical  considerations  and  refine- 
ments of  reasoning  too  abstruse  for  more  than  brief 
mention  here.  If  deterrence  were  the  sole  object,  say 
the  objectors  to  the  theory,  why  not  deliver  the 
heaviest  penalties  in  cases  of  sudden  passion?  For 
example,  to  keep  a  man  from  committing  a  crime  under 
a  fit  of  temper,  a  grave  penalty  should  be  threatened, 
whereas  to  prevent  a  man  from  slaying  his  mother 
needs  less  punishment,  because  affection  will  guide  the 
conduct  of  the  prospective  offender.  Again,  the  hard- 
ened offender,  the  incorrigible,  would  have  to  go  free, 
because  beyond  deterrent  restraint. 

It  is  argued  that  deterrence  has  been  fully  tried 
in  jails  and  penitentiaries,  and  by  punishments  rang- 
ing all   the  way  from  hard  labor  to  a  seat  in  the 


86  BY  RIGHT  OF  SWORD 

electrical  chair — all  without  avail.  All  these  do  not 
prevent  the  increase  of  crime.  More  than  a  quarter 
of  a  million  professional  criminals  thrive  by  crime 
alone  in  the  United  States.  Approximately  a  hundred 
thousand  prisoners  are  in  jails  and  penitentiaries  year 
in  and  year  out.  These  were  not  deterred  by  the 
punishment  of  others;  others  will  not  be  deterred  by 
their  punishment.  The  states  of  the  Union  spend  more 
than  two  hundred  million  dollars  each  year  to  main- 
tain these  prisons  and  the  courts.  There  were  6,597 
murders  annually  during  the  twenty  year  period  from 
1885  to  1904,  in  the  United  States  alone,  with  only 
1.3  per  cent  convictions,  as  against  95  per  cent  of  con- 
victions in  Germany,  In  1895  there  were  10,500  mur- 
ders in  the  United  States.  Where  was  deterrent  in- 
fluence? See  World  Almanac,  1913,  page  309,  and  see 
Strong's  Social  Progress,  1906,  pages  169  and  171. 

It  is  also  argued  that  it  is  wrong  to  make  one  man 
suffer  in  order  to  prevent  another  man  from  commit- 
ting a  crime,  to  make  the  one  convicted  man  the  scape- 
goat for  the  community,  after  the  fashion  of  the  an- 
cient Jewish  custom  at  the  altar,  where  the  one  goat 
bore  the  sins  of  the  people.  It  is  wrong  to  punish 
Brown  to  prevent  Jones  from  becoming  a  burglar. 
Two-thirds  or  more  of  all  criminals  are  recidivists, 
so  the  punishment  did  not  deter  them  from  subsequent 
offenses. 

It  is  argued  in  rebuttal  to  this  contention  that,  but 
for  the  penitentiaries  and  jails,  there  would  be  far 
more  crime  than  there  is  at  present,  also  that  statistics 
on  the  subject  of  the  increase  of  crime  are  unreliable. 
It  is  shown  that  such  men  as  the  President  of  the 
Prison  Association  of  New  York  (Eugene  Smith,  1904) 
have  shown  the  absence  of  reliable  statistical  data. 


A  DEFENSE  OF  CAPITAL-PUNISHMENT      87 

Smith,  from  other  and  less  questionable  indications, 
reached  the  conclusion  that  crime  is  decreasing. 
Strong,  page  172,  as  above  quoted. 

REFORMATION  A  SECONDARY  PURPOSE. 

And  now  we  come  to  the  modem  contention  of  the 
opponents  of  the  gallows,  who  make  reformation  the 
principal  object  of  punishment,  the  supreme  end  of 
society  in  its  dealings  with  criminals.  It  is  contended 
that  the  criminal  is  a  sick  man,  not  to  be  despised  or 
treated  harshly,  but  to  be  loved  and  molded  into  ways 
of  righteousness.  If  we  could  only  read  his  heart, 
suffer  his  limitations,  realize  his  plight,  our  vindictive- 
ness  would  become  pity  and  loving  kindness.  Crime 
is  caused  by  heredity  and  environment.  Change  the 
surroundings  and  much  can  be  done,  even  with  the 
hardened  criminal.  Hospitals,  asylums  and  reformato- 
ries must  take  the  place  of  modern  prisons  and  their 
death-inflicting  gallows  and  electric  chairs.  The  only 
valid  object  of  punishment  is  the  moral  regeneration  of 
the  prisoner.  Criminals  can  be  cured.  Society  has  a 
debt  to  pay  the  criminal,  for  society  has  permitted 
conditions  that  made  him  possible. 

In  answer  to  this  contention,  it  is  maintained  that 
the  chief  and  only  logical  concern  af  the  state,  pri- 
marily, is  with  society,  not  with  the  individual  of- 
fender. The  state  has  no  call  to  try  to  estimate  the 
intrinsic  worth  of  individual  character.  In  many 
cases  efforts  at  reformation  go  forward  simultaneously 
with  the  punitive  elements  of  imprisonment.  If  the 
aim  of  punishment  be  reformation,  then  the  degree  of 
reformation  accomplished  during  the  process  of  in- 
carceration should  measure  the  length  and  character 
of  the  imprisonment.     It  would  be  wrong  to  detain 


88  BY  RIGHT  OF  SWORD 

the  offender  one  moment  beyond  the  time  of  his  re- 
generation. Even  the  keenest  judge  of  human  nature 
is  baffled  in  the  presence  of  this  problem.  Nobody 
can  tell  whether  repentance  is  genuine  or  complete, 
or  whether  a  good  man  within  prison  walls  might  not 
become  a  bad  man  amid  the  temptations  of  the  out- 
side world.  Many  instances  might  be  cited  of  pre- 
tended repentance  that  were  followed  by  cold-blooded 
deeds  of  violence  almost  immediately  after  the  rejuve- 
nated and  reformed  criminals  gained  their  freedom. 
Frequently  the  wickedest  of  men  appear  to  repent. 
They  whine  and  suffer  in  their  cells,  promising  to  be- 
come model  citizens.  Should  a  vicious  murderer  be  set 
free  when  he  appears  to  have  suffered  from  remorse? 
It  would  be  dangerous  to  give  such  a  man  his  liberty. 

The  establishment  of  the  principle  of  reformation 
as  the  main  object  of  punishment  for  crime  would 
free  poisoners  and  garroters  whose  consciences  were 
smitten,  but  would  hold  beggars,  tramps  and  petty 
offenders  for  life,  at  public  expense,  if,  forsooth,  these 
offenders  were  not  able  to  feel  that  their  offenses  were 
deep  enough  to  cause  a  change  of  heart. 

Another  point  of  great  weight,  under  this  view,  is 
that  the  man  hopelessly  beyond  reform  should  not  be 
punished,  since  the  logical  object  of  punishment  is  im- 
possible. The  slight  offender,  amenable  to  reform, 
should  be  made  to  suffer.  There  is  no  escape  from 
the  logical  conclusion  that  desperate  incorrigibility 
would  excuse  the  offender  from  punishment. 

If  a  prison  is  to  be  a  place  of  instruction,  gymnas- 
tics, music,  theatrical  performances,  the  teaching  of 
trades  and  professions,  and  the  final  acceptance  of  this 
or  that  ethical  theory  or  formal  religion — in  short,  an 
educational  home,  admission  to  which  is  solely  for  the 


A  DEFENSE  OF  CAPITAL-PUNISHMENT      89 

comfort  and  well-being  of  the  criminal — it  is  truly  re- 
grettable that  entrance  to  it  may  be  gained  only 
through  gates  of  wickedness  and  over  roads  of  crime. 
See  McConnell's  Criminal  Responsibility,  page  105. 

A  HARVEST  OF  THISTLES. 

But  figures  show  that  the  reformation  idea  has 
reaped  a  harvest  of  thistles.  It  has  been  almost  barren 
of  effects  in  the  case  of  the  really  criminal  class. 
Drahms  says  that  punishment  has  little  or  no  effect. 
It  does  not  reach  the  springs  of  human  motives  or 
affect  the  sources  of  responsible  conduct.  Parsons 
adds  his  testimony  that  science  is  showing  more  and 
more  the  narrowing  field  of  reformation.  (McConnell, 
page  106.)  McKim  also  takes  this  view,  as  did  Doctor 
Maudsley,  in  Body  and  Mind,  heretofore  quoted.  The 
real  will  of  the  man  can  not  be  reformed.  The  Emer- 
sonian idea  persists,  as  thus  expressed:  "When  each 
comes  forth  from  his  mother's  womb,  the  gate  of  gifts 
closes  behind  him.  Let  him  value  his  hands  and  feet, 
he  has  but  one  pair.  So  he  has  but  one  future,  and 
that  is  already  predetermined  in  his  lobes,  and  de- 
scribed in  that  little  fatty  face,  pig-eye,  and  squat 
form.  All  the  privilege  of  the  world  can  not  make 
poet  or  prince  of  him.  In  some  men,  digestion  and  sex 
absorb  the  vital  force,  and  the  stronger  these  are,  the 
inidividual  is  so  much  weaker.  The  more  of  these 
drones  perish,  the  better  for  the  hive."  Emerson's 
Fate. 

The  fundamental  source  of  crime,  all  theories  aside, 
lies  in  the  personal  moral  character  which,  as 
Schopenhauer  has  shown,  is  original  and  unalterable. 
In  such  characters,  deterrence  through  fear  is  possible, 
reformation    never.      The    moral    fiber    can    not    be 


90  BY  RIGHT  OF  SWORD 

changed.  Oak  trees  do  not  bear  strawberries,  Nero 
was  Nero  still,  even  though  Seneca  was  his  teacher. 
Lead  can  not  be  transmuted  into  gold.  Nietzsche,  the 
brilliant  philosopher,  held  that  punishment  is  utterly 
unable  to  effect  moral  reformation.  Consult,  on  this 
point,  previous  quotations  from  Sir  Leslie  Stephen. 
See  also  his  Science  of  Ethics,  chapter  XI.,  page  418. 

Carlyle  knew  the  depths  of  human  emotion  and  was 
familiar  not  only  with  the  great  criminals  of  history, 
but  with  the  scoundrels  of  the  market  place,  as  well. 
He  thus  vigorously  states  the  case  of  the  degenerate: 

**A  scoundrel  is  a  scoundrel;  that  remains  forever  a 
fact;  and  there  exists  not  on  the  earth  whitewash  that 
can  make  the  scoundrel  a  friend  of  this  universe;  he 
remains  an  enemy,  if  you  spend  your  life  in  white- 
washing him.  He  won't  whitewash.  The  one  method 
clearly  is  that,  after  a  fair  trial  you  dissolve  partner- 
ship with  him;  send  him,  in  the  name  of  Heaven, 
whither  he  is  striving  all  this  while,  and  have  done 
with  him."    See  Carlyle 's  Essay  on  Modern  Prisons. 

The  fact  that  from  seventy-five  to  eighty  per  cent 
of  the  convicted  men  of  penitentiaries  go  back  to 
crime — possibly  more,  but  that  proportion  are  re- 
convicted— indicates  that  Carlyle  knew  criminal  hu- 
man nature. 

In  the  presence  of  the  invalidity  of  each  of  the  com- 
monly suggested  objects  of  punishment  to  satisfy  the 
reason  and  withstand  criticism,  we  are  forced  to  accept 
the  principle  that  punishment  is  for  social  utility,  as 
expressed  by  McConnell  in  the  previous  quotations. 
Stephen  reaches  practically  the  same  conclusion  in  his 
insistence  that  the  welfare  of  the  social  fabric  is  the 
supreme  end  of  punishment.  On  page  9  of  his  work 
he  also  concludes  that ' '  whether  we  are  or  are  not  free, 


A  DEFENSE  OF  CAPITAL-PUNISHMENT      91 

we  must  act  as  if  we  were  free.  Whether  conduct  be 
or  be  not  determinate,  we  must  reason  about  it  as  if 
it  were  determinate." 

A  man's  actions  are  inferred  from  his  character  and 
circumstances,  or  his  character  is  inferred  from  his 
actions.  If  two  men  act  differently,  there  must  be 
corresponding  difference  in  the  character  or  circum- 
stances. If  the  doctrine  of  free  will  is  inconsistent 
^jurith  this  theory,  it  must  be  rejected.  The  social 
tissue,  as  Stephen  designates  it,  must  be  preserved 
against  criminals.  The  equilibrium  of  that  tissue  must 
be  maintained  inviolate,  under  the  best  ideals  of  the 
age.  Morality  is  the  sum  of  the  preservative  in- 
stincts of  society,  and  those  which  imply  a  desire  for 
the  good  of  the  society  itself.  (Stephen,  page  208.) 
No  process  of  education  or  reform  would  convert  a 
Judas  Iscariot  into  a  Paul  or  a  John.  But  the  human 
hog,  as  well  as  the  genuine  man,  will  find  his  account 
in  being  on  tolerable  terms  with  the  society  in  which 
he  lives.    (Stephen,  page  408.) 

It  must  always  be  borne  in  mind,  as  Spencer  con- 
tends in  his  essay  on  Prison  Ethics,  that  so  long  as  the 
individual  citizen  pursues  the  objects  of  his  desires 
without  diminishing  the  equal  freedom  of  any  of  his 
fellow  citizens  to  do  the  like,  society  can  not  equitably 
interfere  with  him.    lie  says : 

Life  depends  on  the  maintenance  of  certain  natural  re- 
lations between  actions  and  results.  •  *  *  In  our  dealings 
with  external  nature  and  our  fellow  men,  there  are  rela- 
tions of  cause  and  effect,  on  the  maintenance  of  which  life 
depends.  •  ♦  •  The  defrauded  person  is  physically  in- 
jured by  deprivation  of  the  wherewithal  to  make  good  the 
wear  and  tear  he  had  undergone;  and  if  the  robbery  be 
continually  repeated,  he  must  die.  Where  all  men  are 
dishonest  a  reflex  evil  results.  ♦  ♦  •  All  are  Indirectly  un- 
dermined by  destruction  of  the  motive  for  work,  and  by 


92  BY  RIGHT  OF  SWORD 

the  consequent  poverty.  Thus,  to  demand  that  there  shall 
be  no  breach  of  the  natural  sequence  between  labor  and 
the  rewards  obtained  by  labor,  is  to  demand  that  the  laws 
of  life  shall  be  respected. 

FUNDAMENTAL   PRINCIPLES. 

The  foregoing  gives  the  fundamental  justification  of 
all  restraint  and  elimination  in  punitive  lavs^s.  The 
right  of  property  is  a  logical  corollary  from  certain 
necessary  conditions  of  complete  living.  Spencer  con- 
cludes that  moralists  and  most  lawyers  are  wrong  in 
maintaining  that  rights  are  derived  from  human  legis- 
lation, or  from  immediate  expediency,  as  others  say; 
for  the  fundamental  rights  are  deducible  from  the 
established  connections  between  our  acts  and  their  re- 
sults. "As  certainly  as  there  are  conditions  which 
must  be  fulfilled  before  life  can  exist,  so  certainly  are 
there  conditions  which  must  be  fulfilled  before  com- 
plete life  can  be  enjoyed  by  the  respective  members 
of  society,  and  those  which  we  call  the  requirements 
of  justice  simply  answer  to  the  most  important  of  such 
conditions. ' ' 

Spencer  stoutly  maintains  that  with  the  support  of 
the  prisoner  the  community  has  no  more  to  do  than 
before  he  committed  the  crime,  as  it  is  simply  the  busi- 
ness of  society  to  defend  itself  against  him,  and  it  is 
his  business  to  live  as  well  as  he  can  under  the  penal- 
ties and  restrictions  society  imposes  upon  him.  "He 
may  rightly  ask  for  an  opportunity  of  laboring  and 
of  exchanging  the  produce  of  his  labor  for  necessa- 
ries. He  must  be  content  to  gain  as  good  a  livelihood 
as  the  circumstances  permit ;  and  if  he  can  not  employ 
his  powers  to  the  best  advantage,  if  he  must  work 
hard  and  fare  scantily,  these  evils  must  be  counted 
among  the  penalties  of  his  transgression — ^the  natural 


A  DEFENSE  OP  CAPITAL-PUNISHMENT      93 

reaction  of  his  wrong-doing."  (Prison  Ethics,  page 
169.) 

On  this  self-maintenance,  equity  sternly  insists. 
*  *  He  is  confined  that  he  may  not  further  interfere  with 
the  complete  living  of  his  fellow-citizens — that  he  may 
not  again  intercept  any  of  those  benefits  which  the 
order  of  nature  has  conferred  on  them,  or  on  any  of 
those  procured  by  their  exertions  and  careful  con- 
duct. And  he  is  required  to  support  himself  for  ex- 
actly the  same  reasons — that  he  may  not  interfere 
with  others'  complete  living — that  he  may  not  inter- 
cept the  benefits  they  earn.  For,  if  otherwise,  whence 
must  come  his  food  and  clothing?  •  •  •  From  the 
pockets  of  the  tax-payers." 

These  taxes  for  the  support  of  convicts  are  the 
equivalents  of  the  benefits  earned  by  honest  labor. 
These  earnings,  in  other  words,  are  means  to  a  com- 
plete living.  If  the  tax-gatherer  takes  this  fund  for 
the  benefit  of  the  convict,  the  conditions  of  complete 
life  are  broken.  The  convict  commits  by  deputy  a 
further  aggression  on  his  fellow-citizens. 

On  the  other  hand,  if  the  products  of  the  convict 
are  sold,  he  again  becomes  a  menace  to  free  labor. 
Why,  then,  tax  society  to  maintain  murderers  who 
have  forfeited  all  rights?  Furthermore,  why  not 
work  convicts  on  roads  and  force  them  to  do  the 
drudgery  of  society  in  other  fields  of  industry  that  do 
not  interfere  with  free  men?  Thus,  to  the  commonly 
assigned  objects  of  punishment,  Spencer  adds  the  bio- 
logical necessity  that  forces  society  to  restrain  all  who 
interfere  with  the  laws  of  complete  living.  So  long 
as  we  live  in  a  world  of  physical  limitations  and  ani- 
mal necessities,  so  long  as  there  is  a  limit  to  the  ag- 
gressions that  may  be  permitted  without  interrupting 


94  BY  RIGHT  OF  SWORD 

or  even  ending  human  life,  just  that  long  must  we 
apply  to  all  aggressors  so  much  force  aa  shall  be 
requisite  to  re-establish  the  laws  of  complete  living. 
In  a  world  such  as  ours,  mere  passivity,  under  ethereal- 
ized  conceptions  of  duty,  can  not  guarantee  the  pro- 
tection of  life  and  property;  hence  punishment,  even 
to  the  extent  of  the  death  penalty,  is  justified  by  the 
fundamental  laws  of  life, 

PUNDAMENTAIi  CONDITIONS. 

In  his  entertaining  and  illuminating  essay  entitled  Ab- 
solute Political  Ethics,  Herbert  Spencer  saya:  "If  it  be 
admitted  that  life  can  be  maintained  only  by  certain  ac- 
tivities, it  must  be  admitted  that  when  like-natured  be- 
ings are  associated,  the  required  activities  must  be  mu- 
tually limited;  and  that  the  highest  life  can  result  only 
when  associated  beings  are  so  constituted  as  severally  to 
keep  within  the  implied  limits.  *  ♦  *  These  are  a  priori 
truths  which  admit  of  being  known  by  contemplation  of 
the  conditions — axiomatic  truths  which  bear  to  ethics  a 
relation  analogous  to  that  which  the  mathematical  axioms 
bear  to  the  exact  sciences.  *  *  *  And  now  observe  a  truth 
which  seems  entirely  overlooked;  namely,  that  the  set  of 
deductions  thus  arrived  at  is  verified  by  an  immeasur- 
ably vast  induction,  or  rather  by  a  great  assemblage  of 
vast  inductions.  For  what  else  are  the  laws  and  judicial 
systems  of  all  civilized  nations,  and  of  all  societies  which 
have  risen  above  savagery?  What  is  tbe  meaning  of  the 
fact  that  all  peoples  have  discovered  the  need  for  pnn-i 
ishing  murder  usually  with  death?  How  is  it  that  where 
any  considerable  progress  has  been  made,  theft  is  forbid- 
den by  law,  and  a  penalty  attached  to  it?  [The  readea* 
should  note  that  Mr.  Spencer  does  not  derive  the  gallows 
from  barbarism  or  savagery.  EDITOR.]  *  •  •  No  cause 
can  be  assigned  save  a  general  uniformity  in  men's  expe- 
riences, showing  them  that  aggressions  directly  injurious 
to  the  individuals  aggressed  upon  are  indirectly  injurious 
to  society.  Generation  after  generation  observations  have 
forced  this  truth  on  them;  and  generation  after  generation 


A  DEFENSE  OP  CAPITAL-PUNISHMENT      95 

they  have  been  developing  the  interdicts  into  greater  de- 
talL  That  is  to  say,  the  above  fundamental  principles 
and  their  corollaries,  arrived  at  a  priori,  are  verified  in 
an  infinity  of  cases  a  posteriori." 

In  other  words,  human  experience,  covering  wide 
vistas  of  time,  is  in  itself  a  great  fact  to  reckon  with 
when  we  come  to  the  consideration  of  penal  codes. 
Under  all  flags  and  religions,  from  pole  to  pole,  and 
from  the  dawn  of  historical  knowledge  down  to  this 
very  day,  the  wisdom  of  the  ancient  law  has  been 
sustained.  Life  for  life,  the  ancient  sacrifice,  is  still 
justified  by  human  experience. 

Just  here  it  may  be  well  to  say  a  word  in  defense 
of  both  savagery  and  barbarism,  two  essential  and 
marvelous  steps  in  the  progress  of  the  human  race,  or, 
rather,  two  states  through  which  man  has  passed. 

In  flippant  shallowness  it  is  often  charged  that  sav- 
agery and  barbarism  were  wholly  worthless,  wholly 
brutal  throughout  their  ramifications.  To  say  that  this 
or  that  is  a  relic  of  barbarism  is  considered  a  final 
consignment  of  the  rejected  law  or  custom  to  the  junk 
pile  of  history.  Although  neither  savagery  nor  bar- 
barism gave  us  the  gallows,  both  have  given  us  won- 
derful achievements.  Morgan's  unparalleled  Ancient 
Society  (page  41)  tells  us  that  savagery  was  the  forma- 
tive period  of  the  human  race.  Commencing  at  zero 
in  knowledge  and  experience,  without  fire,  without 
articulate  speech,  and  without  arts,  our  savage  pro- 
genitors fought  the  great  battle,  first  for  existence 
and  then  for  progress,  until  they  secured  safety  from 
ferocious  animals,  and  permanent  subsistence.  Devel- 
oped speech  and  the  occupation  of  the  entire  earth  fol- 
lowed. The  earliest  inventions  were  the  most  difficult 
to  accomplish  because  of  the  feebleness  of  the  powers 


96  BY  RIGHT  OF  SWORD 

of  abstract  reasoning.  The  bow  and  arrow,  slowly 
and  painfully  invented  and  developed  by  savages,  was 
the  beginning  of  the  conquest  of  the  globe. 

SOME  BARBARIAN  GIFTS. 

Emerging  from  savagery  to  barbarism,  man  was 
better  equipped  for  the  great  battle  of  the  ages ;  so  the 
barbarians  gave  us  the  domestication  of  useful  animals, 
the  discovery  of  the  cereals,  the  use  of  stone  in  archi- 
tecture, and  the  process  of  smelting  iron  ore.  The 
chisel,  the  hammer,  the  anvil,  the  sword,  and  the  plow 
were  the  harvest  of  the  secret  of  smelting.  All  civili- 
zation rests  on  the  fundamental  achievements  of  the 
barbarians.  The  barbarian  wrought  out  all  the  ele- 
ments of  civilization  except  alphabetic  writing.  Man's 
achievements  as  a  barbarian  should  be  considered  in 
their  relation  to  the  sum  of  human  progress;  and  we 
may  be  forced  to  admit  that  they  transcend,  in  relative 
importance,  all  his  subsequent  works.  (See  Ancient 
Society,  page  31.)  Homer  tells  us  of  the  great  achieve- 
ments of  Aryan  society  before  it  had  emerged  from 
barbarism.  He  tells  us  what  the  ancient  Greeks  had 
accomplished  during  barbarism,  and  their  achievements 
constitute  a  marvelous  chapter  in  human  history. 

We  owe  a  wonderful  debt  to  ancient  man,  who 
brought  forth  our  ancestors  under  frightful  conditions, 
struggling  for  thousands  of  years  to  conquer  the  globe ; 
to  manufacture  human  speech  from  the  winds  he 
breathed;  to  emerge  from  trees  and  caves;  to  invent 
agriculture  and  che  alphabet;  to  lay  the  foundations 
for  all  we  know  and  enjoy  to-day, 

John  Burroughs  tells  us  that  in  early  Tertiary  times 
our  ancestor  was  a  small,  feeble  mammal,  physically 
powerless  before  the  great  carnivorous  enemies  and 


A  DEFENSE  OF  CAPITAL-PUNISHMENT      97 

the  flying  monsters  of  the  globe.  But  man,  by  the  rude 
weapons  of  force  and  cunning,  has  survived  the  war 
of  the  elements,  the  bloody  duels  of  countless  ages  of 
superstition,  war  and  cannibalism,  the  black  nights  of 
history,  the  cruel  misfortunes  of  the  yesterdays  that 
we  like  to  forget.  "Man  has  never  been  coddled;  fire, 
water,  frost,  gravity,  hunger,  death,  have  made  and 
still  make  no  exceptions  in  his  favor."  Burroughs* 
Time  and  Change,  page  192. 

HOW  MAN  HAS  MABCHED. 

Man  has  been  marching  from  ways  of  violence  into 
paths  of  peace — swimming  Silurian  and  Devonian  seas, 
climbing  the  sandstone  steps,  over  limestone,  con- 
glomerate and  slate;  he  has  stemmed  the  floods  and 
escaped  from  the  convulsions  of  Carboniferous  times, 
unharmed  by  the  earthquakes  and  volcanoes  that  rent 
the  globe.  Through  eruptions,  cataclysms,  great  tidal 
floods  of  angry  seas,  past  ice  and  flame,  escaping  from 
dragons  and  monsters  of  the  deep,  he  has  come  into 
his  present  estate.  We  owe  thanks  to  the  forgotten 
heroes  of  deep  antiquity  for  their  victories  over  creep- 
ing, swimming  and  flying  monsters;  over  hunger, 
nakedness,  cold,  superstition,  and  the  countless 
scourges  that  pursued  them  from  the  unclothed  and 
uncradled  infancy  of  cave  and  jungle,  in  their  march 
over  the  far-flung  battle  lines  that  lead  from  the  dust 
of  hundreds  of  thousands  of  years  ago  to  the  glories 
and  splendors  of  the  great  world  of  to-day. 

But  great  juridical  systems,  with  courts,  peniten- 
tiaries and  the  machinery  for  carrying  out  the  edicts 
of  the  Goddess  of  Justice,  blind  but  armed  with  accu- 
rate scales,  belong  to  the  later  stages  of  human  de- 
velopment.   The  Avenging  Angel,  guarding  the  rights 


98  BY  RIGHT  OF  SWORD 

of  even  the  humblest,  jealous  of  every  infraction  of  the 
social  order,  ever  ready  to  confine  or  extirpate  the  anti- 
social, the  wild  beasts  who  rob  and  slay,  is,  in  its  more 
perfect  form,  a  development  of  later  times.  Neither 
savages  nor  barbarians  gave  us  the  Mosaic  Law, 
Magna  Charta,  or  the  Declaration  of  Independence. 
Christianity  spread  the  gospel  of  the  Destroying  Angel, 
demanding  the  ancient  sacrifice  of  life  for  life. 

Those  who  would  solemnly  and  lawfully  end  the 
lives  of  a  few  vicious  members  of  society  to  prevent 
their  class  from  ending  many  innocent  lives,  are  even 
kinder  and  gentler  than  the  misguided  sentimental- 
ists who  tremble  at  the  thought  of  capital-punishment. 
But  the  stern  logic  of  events,  the  demands  of  Retrib- 
utive Justice,  the  terrible  judgments  of  righteousness, 
must  be  executed  by  the  Avenging  Angel  as  a  terror 
to  evil-doers ;  for  "  he  is  the  minister  of  God  to  thee  for 
good" — a  revenger  to  execute  wrath  upon  the  wicked. 


CHAPTER  IV. 

Christianity  Justifies  the 
Death  Penalty 

CAPITAL-PUNISHMENT  and  kindred  questions 
are  viewed  by  devout  people  in  the  light  of  theo- 
logical problems.  In  spite  of  the  fact  that  some  Chris- 
tian ministers  maintain  that  the  death  penalty  is  con- 
trary to  the  teachings  of  Holy  Writ,  the  overwhelming 
burden  of  authority  is  to  the  effect  that  the  Bible 
solemnly  commands  that  the  murderer  be  put  to  death, 
lest  he  defile  the  land. 

Let  us  examine  the  question  from  the  point  of  view 
of  the  Roman  Catholic  Church,  then  view  it  as  inter- 
preted by  one  of  the  greatest  Protestant  clergymen 
who  have  ever  discussed  the  problem — Dr.  George  B. 
Cheever,  the  eminent  Greek  and  Hebrew  scholar  and 
Biblical  commentator. 

The  Catholic  Encyclopedia  has  an  exhaustive  article 
on  the  subject  of  capital-punishment,  which  it  presents 
from  the  historical  as  well  as  from  the  Biblical  point 
of  view.  It  quotes  Exodus  xxi.  and  Esther  ii.,  22,  23. 
The  latter  citation  gives  the  incident  of  hanging  men 
on  a  tree.  The  Encyclopedia  shows  that  capital-punish- 
ment was  common  among  the  Greeks;  that  it  is  not 
contrary  to  the  teachings  of  the  church ;  that  it  was 
stoutly  defended  by  the  illustrious  Jeremy  Benthamj 

99 


100  BY  RIGHT  OF  SWORD 

and  that  it  is,  finally,  a  just  power  of  civil  govern- 
ments, and  is  so  recognized  by  the  Church. 

Elsewhere  in  this  work  elaborate  quotations  have 
been  made  from  a  series  of  articles  by  the  Reverend 
Father  William  Barry,  one  of  the  most  learned  prelates 
of  the  Church.  See  the  index  for  this  discussion,  most 
of  which,  however,  is  from  ethical  rather  than  theo- 
logical points  of  view.    See  pages  143  to  146. 

An  excellent  Catholic  work  on  moral  philosophy  is 
by  Joseph  Rickaby,  S.  J.  It  contains  a  justification 
of  the  death  penalty.  The  learned  author  quotes 
Romans  xiii.,  3  and  4:  **For  rulers  are  not  a  terror  to 
good  works,  but  to  evil.  *  *  *  For  he  is  the  min- 
ister of  God  to  thee  for  good.  But  if  thou  do  that 
which  is  evil,  be  afraid;  for  he  beareth  not  the  sword 
in  vain;  for  he  is  the  minister  of  God,  a  revenger  to 
execute  wrath  upon  him  that  doeth  evil. ' ' 

Aristotle's  Ethics,  x,  ix,  is  quoted  to  the  effect  that 
law  has  a  proper  coercive  fun<3tion,  appealing*  to  force, 
notwithstanding  that  it  is  a  reasoned  conclusion  of 
practical  wisdom  and  intelligence.  No  odium  attaches, 
therefore,  to  its  use  of  force. 

Rickaby  argues  that  occasions  are  conceivable  whea 
the  infliction  of  capital  punishment  may  become  un- 
necessary, but  he  maintains  that  the  power  to  inflict  it, 
based  on  righteousness,  must  be  reserved  by  the  state. 
He  adds:  "If  men  ever  become  ideally  virtuous,  the 
right  to  visit  gross  crime  with  death  can  not  hurt 
them,  but  it  will  strengthen  their  virtue.  Death  is  the 
penalty  that  most  exactly  counterpoises  in  the  scales  of 
justice  the  commission  of  a  murderous  crime." 

There  are  commentators  who  take  a  stricter  view, 
contending  that  we  have  no  right  to  abrogate  the  com- 
mand of  God  to  put  the  murderer  to  death,  since  God 's 


A  DEFENSE  OF  CAPITAL-PUNISHMENT    101 

word  on  that  subject  is  a  commandment  for  all  races 
and  all  time. 

ANOTHER  GREAT  CATHOLIC  SPEAKS. 

The  Reverend  Father  John  J.  Ford,  S.  J.,  vice-presi- 
dent and  prefect  of  studies  at  the  University  of  St. 
Ignatius,  San  Francisco,  has  entered  the  field  of  con- 
troversy many  times  in  favor  of  the  death  penalty, 
arguing  from  many  points  of  view,  as  heretofore 
shown  in  these  pages.  He  has  also  touched  the  ques- 
tion of  Biblical  authority.  He  says  capital-punishment 
has  been  universal  and  most  constant  since  the  an- 
nouncement of  the  Gospel ;  ' '  and  twenty  centuries  of 
Christian  civilization  are  not  to  be  despised  so  easily.'* 
He  quotes  Exodus  xxi.,  12,  and  Leviticus  xxiv.  in  favor 
of  the  death  penalty.  Moses,  Joshua,  Samuel,  David, 
Elias  and  other  holy  men  used  this  power  and  put  to 
death  malefactors.  He  also  quotes  Paul's  Epistle  to 
the  Romans  as  to  bearing  the  sword  as  God's  minister. 
Paul  here  tells  us  that  the  right  of  the  sword,  or  capi- 
tal punishment,  has  been  given  by  God  to  rulers 
against  criminals.  He  bears  it  as  a  symbol  of  his  right 
to  put  to  death  the  wicked  for  the  security  of  society. 

"True,  Christ,  the  God-man,  said  in  the  New  Testa- 
ment, Thou  shalt  not  kill,  but  as  God  he  had  said  the 
same  thing  in  the  Old  Testament.  •  •  •  Unless, 
then,  one  wishes  to  say  that  Christ  is  not  God,  or  that 
he  is  self-contradictory,  it  must  be  admitted  that  the 
words  of  the  Fifth  Commandment  have  not  the  mean- 
ing ascribed  to  them  by  some  of  our  sensational  aboli- 
tionists. Their  obvious  meaning,  taken  in  the  light  of 
all  revelation  and  reason  is,  Thon  shalt  not  kill  by  pri- 
vate authority,  except  when  it  is  necessary  in  case  of 
self-defense.    But  this  does  not  forbid  the  killing  of  « 


102  BY  RIGHT  OP  SWORD 

man  by  public  authority  in  a  just  war,  or  when,  as  in 
the  case  of  a  great  criminal,  it  is  necessary  for  the 
common  weal.  For  Christ  is  God,  and  God  does  not 
contradict  himself.  Besides,  it  is  an  established  canon 
of  criticism,  and  especially  of  Biblical  criticism,  that 
the  obscurer  passa,ge  should  be  interpreted  in  the  light 
of  the  clearer. ' ' 

The  learned  Jesuit  concludes  that  capital-punish- 
ment, under  Christianity,  is  fully  warranted.  Ha 
argues  that  Christianity  has  corrected  the  glaring 
abuses,  harshness  and  evils  of  the  past,  has  elevated 
mankind  and  eliminated  evils,  but  it  has  stood  and 
must  continue  to  stand  by  the  sanction  of  the  gallows. 
The  entire  race  of  man  has  not  maintained  capital- 
punishment  in  vain.  Two  thousand  years  of  Christian 
ethics  are  added  to  the  verdict  of  deep  antiquity  in 
favor  of  the  gallows.  As  to  the  remote  danger  of 
hanging  innocent  men,  Father  Ford  says  they  die  mar- 
tyrs to  righteousness.  He  thinks  the  guilty  far  more 
liable  to  escape  than  the  innocent  to  be  punished.  Use 
every  precaution,  then  take  the  chance  that  goes  in  all 
human  transactions,  for  all  are  dependent  on  the  falli- 
bility of  mankind's  judgments.  There  is  danger  of 
error  in  all  human  judgments,  but  this  is  not  a  valid 
reason  for  suspending  human  judgments  and  setting 
murderers  free.  When  mercy  and  pardons  replace 
justice,  the  citadel  of  justice  is  destroyed,  license  an(i 
promise  are  given  to  criminals,  and  society  is  exposed 
to  grave  dangers.  When  mercy  replaces  justice  it  be- 
comes the  sister  of  violence,  giving  rebellion  foothold. 

He  concludes  that  if  the  taking  of  human  life  is 
ever  necessary  for  the  common  good,  it  is  justifiable. 
It  is  clearly  necessary  in  self-defense  and  in  a  justifi- 
able war.    So  slaying  a  man  is  not  intrinsically  an  evil, 


A  DEFENSE  OP  CAPITAL-PUNISHMENT    103 

but  only  when  it  is  unjust.  If  it  were  intrinsically  an 
evil  to  slay  a  human  being,  it  could  never  be  allowed, 
even  in  self-defense.  Nobody  holds  to  this  absurd 
view. 

Thomas  Aquinas  (Ethics)  says  that  an  offending 
member  may  be  amputated  when  necessary  to  the 
health  of  the  body,  also  the  corrupt  member  of  the 
body  politic  may  be  slain  by  the  ruler  for  the  common 
good.  The  lesser  right  must  yield  to  the  greater — the 
preservation  of  society  and  its  safety  are  more  im- 
portant than  the  preservation  of  the  life  of  one  of  its 
offending  members. 

Possibly  the  most  sweeping  and  logical  presentation 
of  the  case  ever  made  from  the  Biblical  point  of  vie\^ 
is  that  by  Dr.  George  B.  Cheever,  who  careered  bril- 
liantly in  New  York  and  the  New  England  States  be- 
fore the  Civil  War  and  immediately  following  it.  He 
maintained  the  right  of  the  death  penalty  in  a  series 
of  public  debates,  in  discussions  in  the  North  Ameri- 
can Review,  and  in  two  works  on  the  subject,  A  De- 
fence of  Capital  Punishment,  in  which  he  was  aided  by 
Tayler  Lewis,  of  the  New  York  Bar,  and  Punishment 
by  Death ;  Its  Authority  and  Expediency.  It  is  the  in- 
tention of  the  present  author  to  epitomize  the  conclu- 
sions of  these  great  works,  following  pretty  closely  in 
the  footsteps  of  the  author  as  to  arrangement,  and 
using  much  of  his  language. 

The  eminent  divine  maintains  that  God  made  a  law 
for  the  human  race  when  Noah  was  making  a  new 
start.  The  Noachian  code  made  murder  punishable  by 
death.  The  Jewish  Dispensation  followed  the  Noachian 
law.  Later,  Paul  stood  by  that  law  when  he  was  being 
tried  before  Festus,  and  almost  the  last  thing  in  the 


104  BY  RIGHT  OF  SWORD 

Bible,  a  reference  in  Revelation,  sustains  the  ancient 
law,  which  Christ  in  no  way  amended  or  repealed. 

WHERE  THE  BURDEN  OP  PROOF  LIE& 

The  authors  of  the  first  volume  referred  to  in  this 
Cheever  discussion  maintain  that  the  burden  of  proof 
is  on  the  abolitionist  to  show  that  the  common  inter- 
pretation of  the  Scriptures  has  been  and  is  now  wrong. 
Prima,  facie,  as  the  lawyers  say,  the  common-sense  and 
practice  of  mankind,  the  dictates  of  religion,  the  pre- 
cepts of  morals,  and  the  general  current  of  the  world 's 
legislation  are  sound.  The  experience  of  the  wisest 
and  best  of  mankind  may  not  be  lightly  set  aside  as 
worthless.  The  usage  of  all  civilized  and  highly  re- 
ligious peoples  creates  a  favorable  presumption  of 
right.  It  is  the  abolitionists  who  are  innovators,  com- 
ing to  us  with  new  experiments.  They  lightly  de- 
nounce as  inhuman  and  barbarous  a  law  given  by  the 
Almighty  (once  to  all  the  race)  and  subsequently  to 
his  own  peculiar  and  favored  people;  they  oppose  the 
current  of  ancient  and  modern  legislation;  they  are 
putting  forth  new  views  of  law,  of  government,  of 
penalties,  and  of  the  fundamental  principles  of  ethics 
and  political  philosophy. 

The  abolitionists  lay  claim  to  extra  benevolence  and 
superior  humanity,  pretending  that  their  views  are 
transcendently  Christian,  whereas  Christianity,  based 
on  both  the  Old  and  the  New  dispensations,  commands 
capital-punishment  for  murder.  They  would  dodge, 
forget,  or  interpret  the  meaning  out  of  the  Scriptures. 
They  would  make  pain,  or  poena,  which  means  suffer- 
ing for  crime  as  a  penalty  for  transgression  something 
soft  and  beautiful — a  home  for  the  unfortunates.  They 
would  forget  all  thought  of  the  wrath  to  come.    They 


A  DEFENSE  OF  CAPITAL-PUNISHMENT    105 

wonld  forget  that  judges  were  called  Elohim,  as  stand- 
ing in  the  place  of  God.  (See  Exodus  xxi.,  6,  also  xxii., 
7  and  8.)  See  Deuteronomy  xix.,  17,  where  it  is  shown 
that  the  man  standing  before  the  priests  and  judges 
is  really  before  the  Lord.  The  Scriptures  prescribe 
the  death  penalty  for  murder  (wilful  murder),  not  for 
reformation  nor  deterrence,  but  because  the  land  was 
polluted  with  blood  and  the  whole  people  were  guilty 
until  the  expiation  was  complete. 

AN  ADEQUATE  PENALTY. 

Human  conscience,  the  moral  sense,  the  intuition, 
the  perception  of  the  fitness  of  things,  declare  spon- 
taneously that  the  pain  of  death  and  the  loss  of  life 
fill  the  idea  of  the  appropriateness  of  the  death  penalty 
for  murder.  To  this  effect  all  civilized  mankind  have 
ever  lifted  up  their  voices.  Aristotle  quotes  old  Empe- 
docles  to  the  effect  that  the  death  penalty  is  the 
statute  of  no  one  nation,  but  a  universal  institute,  as 
wide  as  the  air  and  as  extensive  as  light.  In  all  his- 
tory, murderers  have  now  and  then  been  softened  in 
the  presence  of  death,  having  no  unkind  feelings  to- 
ward witnesses,  judges  and  jurors. 

If  there  is  a  crime  which,  in  moral  enormity,  stands 
Qut  beyond  all  others,  it  should  have  attached  to  it  a 
penalty  which,  in  the  same  ratio,  transcends  all  other 
penalties.  There  must  be  something  final  and  highest 
from  which,  as  a  standard,  every  other  gradation  must 
receive  due  estimate. 

Take  away  the  death  penalty  for  cold-blooded  mur- 
der, and  our  whole  system  of  criminal  jurisprudence 
and  all  its  reforming  and  preventive  power  will  suffer 
proportionate  deterioration. 

Many  sincere  Christians  try  to  evade  the  Old  Testa- 
ment, but  the  New  Testament  can  not  stand  without 


106  BY  RIGHT  OF  SWORD 

the  Old.  No  Old  Testament,  then  no  revelation,  no 
authority  for  the  law.  We  must  take  the  entire  Bible 
or  give  up  all  conception  of  the  Word  of  God  as  con- 
tained therein.  The  modern  squeamishness  regarding 
the  Old  Testament  is  unsound.  Deuteronomy  teaches 
the  love  of  right  and  hatred  of  wrong,  but  it  also 
commands  the  duty  of  force  in  resisting  the  public 
enemy.  The  New  Testament  does  not  clash  with  this 
view.  Even  the  mild  and  merciful  Saviour  speaks  in 
thunder  tones,  and  in  a  style  which  no  prophet  had 
ever  dared  to  assume,  of  the  doom  of  the  wicked,  and 
of  "the  wrath  to  come."  Revert  to  the  scenes  of  Cal- 
vary, and  you  can  find  no  relaxing  or  lowering  of  those 
dread  ideas  of  law  and  penalty  and  retributive  justice 
that  appear  prominently  in  the  Old  Testament.  "Re- 
sist not  evil"  does  not  extend  beyond  the  condemna- 
tion of  individual  revenge,  but  the  doctrine  of  resist 
not  evil  has  long  ago  been  abandoned  by  Christians. 

Christ  no  more  meant  to  abolish  the  law  of  force 
than  did  Moses  in  the  Sixth  Commandment  ;*  and  that, 
too,  in  the  face  of  the  most  express  declarations  re- 
corded at  the  same  time  and  emanating  from  the  same 
source. 

THE  ANCIENT  STATUTE. 

It  is  said  that  the  example  of  the  death  penalty  is 
bad.  God  made  the  death  penalty,  it  is  contended,  for 
a  ferocious  and  barbarous  people.  This  is  not  true. 
On  the  contrary,  the  statute  was  first  universal,  for  all 
men  and  all  time.  Later  it  was  for  a  learned,  a  gentle, 
and  a  chosen  people.  Did  God  establish  the  death 
penalty,  if  it  corrupts  the  public,  as  is  maintained,  in 
order  to  make  his  people  more  revengeful  and  vindic- 


•The  Catholics  make  this  the  Fifth  Commandment. 


A  DEFENSE  OF  CAPITAL-PUNISHMENT    107 

tive,  more  passionate  and  brutal,  to  drive  them  to  com- 
mit the  very  crime  of  murder  he  was  trying  to  pre- 
vent ?  No ;  but  that  law  calls  out  the  stem  feeling  of 
right,  the  deep  and  tender  emotions,  and  elevates  hu- 
manity to  a  higher  standard.  This  ultimate  penalty 
often  subdues  the  criminal  himself,  the  wicked  and 
abandoned  wretch  on  whom  all  other  means  would 
have  been  powerless. 

[The  author  here  digresses  to  say  that  he  once  met 
a  murderer  who  confessed  to  him  that  he  had  slain  his 
favorite  brother  and  sister  in  order  to  obtain  a  possible 
$500,  by  arsenic.  The  murderer  was  duly  convicted, 
confessed  also,  and  was  hanged.  He  asked  the  author 
to  witness  his  death,  but  the  invitation  was  declined. 
The  murderer  said  there  was  no  place  for  him  on 
earth,  in  or  out  of  prison,  and  that  he  felt  that  death 
alone  could  ^venge  his  crime.  Incidentally  he  had 
been  a  religious  man  and  a  Sunday  school  teacher.  He 
refused  to  meet  women  with  bouquets,  and  bands  of 
hope  with  petitions  for  his  reprieve.  He  died  calmly, 
and  his  last  words  were  a  frank  corroboration  of  his 
confession. — Author.  ] 

The  overpowering  feeling  of  justice  even  opens  the 
fountains  of  the  criminal's  long  closed  moral  sense. 

The  law  that  prescribed  stoning  to  death  for  the 
man  who  picked  up  a  few  sticks  on  Sunday  was  not 
a  general  law,  but  a  special  example  invoked  against 
a  daring  and  rebellious  opposition  to  God's  recently 
promulgated  law.  Whoso  sheddeth  man's  blood  his 
blood  by  man  shall  be  shed,  was  a  solemn  declaration 
made  to  the  whole  human  family,  and  made  just  after 
all  the  rest  of  mankind  had  been  swept  away  for  the 
very  crimes  by  which  the  earth  had  been  recently  and 
wholly  polluted.     "For  the  earth  is  filled  with  vio- 


108  BY  RIGHT  OF  SWORD 

lence,"  as  the  Scriptures  say.  In  this  connection,  re- 
member that  the  Hebrew  text  is  simple,  plain  and  intel- 
ligible. It  is  here  singularly  free  from  idioms  and  un- 
certainties. 

In  his  work,  Punishment  by  Death,  also  in  his  de- 
bates with  J.  L.  O 'Sullivan,  a  lawyer,  Dr.  Cheever 
says  that  Schlegel  plainly  indicates  that  in  the  writings 
of  Moses,  whatever  is  meant  to  be  a  practical  law  is 
expressed  with  the  greatest  possible  accuracy  and  pre- 
cision. Schlegel  is  certainly  a  name  to  conjure  with. 
This  rule  of  interpretation  is  clearly  applicable  to 
the  law  against  murder.  And  when  God  says,  "At  the 
hand  of  every  man's  brother  will  I  require  the  life  of 
man,"  the  meaning  is  specific.  If  you  should  then 
ask.  How  will  this  life  be  required,  there  instantly  fol- 
lows the  great  enactment,  familiar  for  so  many  gener- 
ations. Whoso  sheddeth  man's  blood,  by  man  shall  his 
blood  be  shed. 

The  argument  from  Scripture,  says  Cheever,  is  plain 
and  powerful,  because  it  is  easy  to  distinguish  be- 
tween what  is  local  and  transitory,  on  the  one  hand, 
and  what  is  universal  and  permanent  on  the  other. 

GOD  GAVE  THE  PRIME  LAW. 

The  reader  should  remember  several  vital  and  funda- 
mental facts,  says  the  great  commentator:  First,  the 
prime  law  was  not  that  of  Moses,  but  of  God.  Next,  it 
should  be  borne  in  mind  that  not  one  law  was  abro- 
gated by  the  Saviour.  Then  one  should  remember  that 
these  old  laws  contain  the  doctrine  of  love,  the  la\^ 
of  courtesy,  of  kindness,  of  benevolence,  and  of  pro- 
tection to  strangers  and  the  poor,  also,  above  all,  love 
of  neighbor. 

In  other  codes  and  concerning  other  subjects,  also. 


A  DEFENSE  OF  CAPITAL-PUNISHMENT     109 

the  law  of  Moses,  contrary  to  some  interpretations, 
was  mild  and  full  of  gentleness  and  equity,  as  the  great 
Graves  shows  in  his  lectures  on  the  Pentateuch.  In 
truth  these  laws  foreshadow  the  Sermon  on  the  Mount. 
Next,  the  code  can  not  be  regarded  otherwise  than  as 
a  collection  of  the  tenets  of  a  superhuman  wisdom. 
The  direct  argument  in  favor  of  capital-punishment, 
taken  from  Scripture,  begins  with  the  prime  com- 
mandment to  Noah.  All  commentators  on  the  mean- 
ing of  Holy  Writ  agree  to  this  interpretation.  Not 
one  of  the  eminent  commentators  holds  that  the  inter- 
pretation is  permissive,  as  the  experts  on  hermeneutics 
say,  but  it  is  mandatory.  Why?  Because  there  is 
wonderful  explicitness,  compactness  and  authority  in 
the  terms  in  which  it  is  expressed.  The  obligation  of 
this  Biblical  command  has  never  ceased  for  a  moment. 
It  has  never  been  repealed,  either  in  the  Old  or  the 
New  Testament.  Murder  must  ever  remain  the  chief 
crime  and  sin  against  God  and  society. 

Murder  is  everywhere  specially  branded  as  the  high- 
est crime  that  can  defile  the  country.  Numbers  xxxv., 
30  to  34,  emphasizes  the  fact  that  there  is  no  substitute 
for  the  life  of  the  murderer,  his  crime  having  defiled 
the  land  so  that  it  can  not  be  cleansed  of  the  blood 
shed  therein  but  by  the  blood  of  him  that  shed  it. 
Exodus  xxi.,  12,  13  and  14  bear  directly  on  this  crime, 
and  permission  is  given  to  take  the  criminal  "from 
mine  altar,  that  he  may  die."  Leviticus  xxiv.,  17,  and 
Deuteronomy  xix.,  10,  and  many  other  parts  of  the 
Bible  show  the  heinousness  of  murder  in  the  sight  of 
God.  The  murderer  shall  not  pollute  the  land  which 
his  crime  has  defiled.  This  thought  is  repeated  again 
and  again.  No  refuge  is  to  be  available  to  him,  and  in 
some  cases  he  is  to  be  delivered  over  into  the  hands  of 


110  BY  RIGHT  OF  SWORD 

the  avengers  of  the  blood — the  relatives  who  then  had 
the  right  to  put  him  to  death.  He  was  to  be  taken 
from  the  very  altar  of  the  temple  of  God  and  put  to 
death.  Deuteronomy  xix.,  10,  says,  "Thine  eye  shall 
not  pity  him."  In  other  words,  God  would  prevent 
the  cheapening  of  human  life  by  the  cheapening  of  the 
punishment  or  by  a  pity  not  deserved.  In  an  emphatic 
and  often  reiterated  command  God  establishes  and  re- 
asserts the  statute  against  murder,  making  the  specific 
penalty  death  in  every  instance.  **Ye  shall  take  no 
satisfaction  for  the  life  of  the  murderer,"  rings  again 
and  again  throughout  Holy  Writ  in  terms  that  can  not 
be  misunderstood. 

This  was  God's  legislation  in  the  covenant  with 
Noah,  set  forth  in  his  law  against  murder  in  Genesis 
ix.,  5  and  6 — the  primal,  "Whoso  sheddeth  man's 
blood,  by  man  shall  his  blood  be  shed."  It  is  also 
his  legislation  hundreds  of  years  later,  for  Noah's  era 
was  from  2948  B.  C.  to  1998  B.  C,  the  Deluge  having 
occurred  about  2348  B.  C,  while  the  period  of  Moses 
was  from  1571  to  1451  B.  C.  But  Moses,  after  this 
long  lapse  of  time,  is  given  the  same  law  that  was 
promulgated  through  Noah.  The  law  is  intended  to 
emphasize  and  reiterate  the  punishment  for  murder 
among  the  Hebrews,  and  to  establish  that  law  again 
so  firmly  that  there  may  remain  no  shadow  of  doubt 
regarding  the  intention  of  the  omnipotent  law-giver, 
no  possibility  of  evading  the  expiation  prescribed  in 
the  death  penalty. 

CHRIST  DID  NOT  ABROGATE  LAW. 

The  learned  Erasmus,  that  genius  who  studied  by 
his  lonely  lamp  to  interpret  the  Word  of  God,  held 
that  Christ  did  not  repeal  the  ancient  law,  and  that 


A  DEFENSE  OF  CAPITAL-PUNISHMENT    111 

he  had  no  reference  whatever,  either  directly  or  by 
implication,  to  the  abrogation  of  the  statute  given  to 
Noah.  Not  one  of  his  teachings  in  any  way  abrogates 
the  death  penalty.  The  change  from  the  Jewish  to  the 
Christian  Dispensation  did  not  remove  the  sanction  of 
the  older  law.  Though  Paul  says,  "Avenge  not  your- 
selves," he  immediately  speaks  of  the  magistrate  as 
bearing  not  the  sword  in  vain,  but  as  a  revenger,  as 
the  minister  of  God  to  execute  wrath  on  the  evil-doer. 
In  other  words,  capital-punishment  and  the  mild  spirit 
of  the  Christian  Dispensation  are  not  inconsistent. 
**He  that  killeth  with  the  sword,  must  be  killed  with 
the  sword."  This  is  not  from  the  Old  Testament,  but 
from  the  very  last  of  the  New — Revelation  xiii.,  10. 
See  also  Matthew  xxvi.,  52,  where  it  is  said  that  they 
who  take  up  the  sword  shall  perish  by  the  sword — 
that  is,  those  who  do  violence  shall  die  by  violence. 

Romans  xiii.,  1-4,  gives  the  civil  magistrate  power 
over  men,  saying  that  rulers  are  not  a  terror  to  good 
works,  but  to  the  evil.  The  ruler  is  there  described  as 
one  who  beareth  not  the  sword  in  vain.  All  these  New 
Testament  references  recognize  the  divine  appoint- 
ment of  human  government,  and  the  validity  of  the 
penalty  of  death.  Paul  recognized  the  justness  and 
solemn  authority  of  the  death  penalty  in  his  own  per- 
son when  he  said:  *'I  stand  at  Caesar's  judgment 
seat,  where  I  ought  to  be  judged.  *  *  •  For  if  I 
am  an  offender,  or  have  committed  anything  worthy  of 
death,  I  refuse  not  to  die.  •  *  •  I  appeal  unto 
Caesar."  See  Acts  xxv.,  especially  10  and  11  for  the 
trial  of  Paul  before  Festus  and  his  appeal  to  Caesar. 

It  will  be  noted  that  Paul,  who  certainly  knew  what 
Christ  taught,  appeals  to  no  Sermon  on  the  Mount, 
to  no  law  of  love  or  speech  or  example  of  Christ,  to 


112  BY  RIGHT  OP  SWORD 

no  provision  of  the  Gospel  abolishing  the  ancient 
death  penalty;  but  in  full  acknowledgment  of  the 
righteousness  of  that  penalty  for  the  guilty,  he  appeals 
unto  Caesar.  This  must  be  regarded  as  absolutely  de- 
cisive of  the  question  at  issue. 

Paul  knows  there  are  crimes  worthy  of  death,  and 
that  human  governments  may  rightfully  inflict  the 
penalty  of  death  for  such  crimes.  The  argument  thus 
tested  in  Paul's  own  case  is  simply  incontrovertible  by 
the  rules  of  logic  and  polemics.  In  other  words,  the 
Christian  Dispensation  did  not  annul  the  Jewish  re- 
garding the  death  penalty.  At  the  opening  of  the 
Christian  Dispensation  the  great  Paul  promulgates  the 
ancient  law,  the  Noachian  ordinance,  the  Mosaic  com- 
mandment. 

NOAH  WAS  ASSURED  BY  GOD. 

It  is  interesting  to  examine  the  case  yet  more 
minutely,  analyzing  it  from  the  foundation.  It  should 
be  remembered  that  God  assured  Noah  that  the  divine 
providence  would  secure  the  punishment  of  bloodshed 
by  death.  When  God  resumed  his  legislation  on  this 
subject,  through  his  minister,  Moses,  he  took  the  im- 
perfect and  in  some  respects  dangerous  institution  of 
private  vengeance  by  the  relative  of  the  murderer's 
victim,  and  hedged  it  around  with  such  other  forms 
as  were  necessary  at  once  to  preserve  its  power,  pre- 
vent its  abuse,  and  give  the  criminal  a  trial.  But  all 
this  after  legislation  bears  direct  reference  to  the  first 
broad  statute  enacted  with  Noah,  the  ordinance  de- 
signed for  all  posterity.  That  ordinance  confers  di- 
rectly upon  the  civil  magistracy  the  power  of  the 
sword,  the  power  of  life  and  death ;  in  other  words,  as 
the  highest  and  most  awful  sanction  of  human  govern- 


A  DEFENSE  OP  CAPITAL-PUNISHMEISfT    113 

ment.  It  clothes  the  administration  of  righteous  law 
with  divine  authority.  It  confers  power  which  God 
alone  had  the  right  to  confer.  It  takes  the  highest 
function  of  government  as  a  personification,  exponent, 
or  representative  of  all  its  just  functions,  and  by  sur- 
rounding it  with  all  the  solemnity  of  a  commission 
from  God,  establishes  forever  the  principle  set  forth  in 
such  explicit  language  by  the  Apostle,  that  "the 
powers  that  be  are  ordained  of  God ;  and  whosoever  re- 
sisteth  power,  resisteth  the  ordinance  of  God;  for  the 
ruler  is  the  minister  of  God,  bearing  not  the  sword  in 
vain." 

God  set  up  a  barrier  unknown  to  the  Antediluvian 
world.  It  restrained  the  malice,  cruelty,  hatred  and 
violence  of  men 's  passions,  which  were  held  by  no  wall 
of  law  prior  to  the  Noachian  ordinance.  God  com- 
forted Noah,  who  remembered  the  wickedness  and 
crime  of  the  Antediluvians  with  feelings  of  terror, 
by  saying  that  murder  should  no  longer  go  unpun- 
ished; there  should  be  a  greater  carefulness  of  human 
life,  a  greater  regard  for  its  sacredness.  It  should  be 
remembered  that  in  the  Antediluvian  world  a  far 
milder  course  had  been  chosen  in  vain,  for  the  mild- 
ness of  the  Antediluvian  law  (like  that  now  being  ad- 
vocated in  the  United  States)  filled  society  with  vio- 
lence and  cringe.  God  spared  Cain,  and  the  conse- 
quence was  that  every  murderer  felt  secure,  just  as 
murderers  now  feel  secure  if  they  can  but  escape  the 
gallows.  This  was  the  very  reasoning  of  Lamech,  who 
slew  a  young  man.  When  his  wives  feared  for  his 
fate,  he  comforted  them  by  referring  them  to  God's 
lenity  in  the  case  of  Cain.  Lamech,  by  the  way,  was 
almost  the  last  lineal   descendant  of   Cain,   and  his 


114  BY  RIGHT  OF  SWORD 

murder  was   perhaps   as  wicked   as  that   of  his   an- 
cestor. 

So  wicked  did  the  ancients  become  under  a  code  of 
lenity  that  Grotius  quotes  the  following  from  the  great 
Thucydides  as  to  Antediluvian  crime:  "It  is  prob- 
able that  in  former  days  heinous  crimes  were  slightly 
punished;  but  when  in  time  these  punishments  came 
to  be  despised,  they  were  changed  into  death." 

At  any  rate,  the  earth  was  filled  with  violence,  and 
the  Deluge  followed;  and  then,  with  Noah  as  the  new 
world's  second  progenitor,  God  established  a  code  of 
more  efficient  and  salutary  severity.  It  was  God 's  con- 
solation to  the  world,  as  if  he  had  said:  "Noah,  fear 
not!  If  there  be  a  Cain  in^your  posterity,  he  shall  be 
slain,  for  whoso  sheddeth  man's  blood,  by  man  shall 
his  blood  be  shed."  This  law  was  for  the  purpose  of 
making  the  life  of  the  individual  a  sacred  charge  upon 
society.  God  was  not  legislating  for  a  race  of  sav- 
ages, as  is  sometimes  ignorantly  contended.  His 
statute  was  for  the  germ  of  a  splendid  people  of  re- 
finement, a  cluster  of  families  with  all  the  culture  and 
knowledge  of  the  Antediluvian  world.  This  law  was 
made  when  there  was  more  piety  in  the  world  than 
there  has  ever  been  during  any  subsequent  period. 
The  law  was  adapted  to  the  world  in  its  best  state,  and 
the  same  law  must  remain  in  the  period  of  its  greatest 
glory.  Three-fourths  of  the  world  were  in  a  sense 
Christians,  for  Noah,  like  Abraham,  saw  Christ's  day, 
and  believed  in  the  foreshadowed  atonement.  The 
Noachian  law,  far  from  being  the  product  or  the  neces- 
sity of  an  uncultivated  or  irreligious  age,  was  rather 
the  offspring  and  the  excellence  of  cultivation  and  of 
piety.  It  was  God's  law,  set  in  the  angry  clouds  of 
human  passion,  binding  and  restraining  them.    There 


A  DEFENSE  OF  CAPITAL-PUNISHMENT    115 

was  great  piety  and  wisdom  when  the  Noachian  code 
was  made,  and  it  was  re-enacted  after  many  centuries 
had  elapsed,  still  more  explicitly,  for  the  wisest,  most 
refined  and  religious  community  in  the  world's  history, 
for  the  spiritual  and  moral  ancient  Jews;  but  even 
then  murder  had,  "the  primal,  eldest  curse  upon  it." 
It  was  a  rank  offense  that  smelled  to  Heaven,  and 
the  voice  of  the  slain  man's  blood  cried  from  the 
ground,  as  of  old.  And  ever  since  those  olden  times 
the  crime  of  deliberate  murder  has  remained  so  enor- 
mous, so  brutal,  so  shocking  and  cruel  that  the  whole 
moral  sense  of  every  community  where  it  is  committed 
rouses  up,  as  then,  and  calls  for  penal  infliction — and 
this  infliction  is  not  cruel  retaliation,  not  malice,  but 
the  demand  for  justice,  the  intuitive  and  spontaneous 
expression  of  the  moral  sense  of  what  is  right  and 
proper. 

God's  law  as  thus  expressed  is  perfectly  natural. 
The  moral  sense  of  the  community  is  based  on  this 
principle :  No  man  of  right  feelings  ever  sees  a  brutal 
man  inflict  pain  and  abuse  on  either  man  or  beast 
without  wishing  to  see  the  malefactor  punished ;  it  is  a 
proper,  deep  and  altogether  human  and  righteous 
feeling  that  punishment  is  due ;  that  the  wicked  ought 
to  feel  the  wickedness  of  his  conduct  through  suffering. 
The  sullen,  hardened  brute  must  be  made  to  suffer. 
This  view  has  been  deemed  sound  by  every  great  writer 
and  philosopher  from  Grotius  to  Spencer. 

Grotius  says  that  the  ancient  Rhadamanthean  law 
is  that  he  that  doeth  evil  shall  suffer  evil.  Plutarch 
and  Plato  agree.  Hierocles  says  that  punishment  is 
medicine  for  wickedness.  The  death  penalty  has  no 
more  revenge  in  it  than  life  imprisonment  or  any  other 
infliction.    It  has  justice  in  it,  and  the  moral  sense  of 


116  BY  RIGHT  OF  SWORD 

the  mind  intuitively  demands  and  regards  justice  as 
the  chief  object  of  this  infliction.  Death  brings  justice, 
the  good  of  society,  and  the  possible  repentance  and 
spiritual  reformation  of  the  offender.  Death  often 
leads  to  conversion,  whereas  life  imprisonment  often 
prevents  it  and  makes  a  harder  wretch  of  the  pris- 
oner. 

SUFFERING  IS  A  JUST  PENALTY. 

The  penalty  of  violated  law  is  suffering,  not  reforma- 
tion, which  is  always  a  secondary  affair.  To  make  re- 
formation primary  is  as  if  we  should  say, ' '  You  wicked 
wretch,  pray  commit  murder,  and  we  shall  at  once 
reform  you  and  make  you  happy."  Reform  must  ever 
remain  a  by-product,  not  a  chief  end  of  punishment. 
We  punish  because  punishment  is  deserved  and  just. 
Punishment  is  a  vindication  for  the  violation  of  a 
righteous  law. 

A  great  German  romance  writer  exclaimed,  as  he 
lay  dying,  "Only  life!  this  sweet  life!  life  at  any 
price,  even  with  suffering — life!  life!"  There  is  no 
passion  so  strong  as  the  love  of  life,  hence  no  fear 
so  great  as  the  fear  of  death — of  what  comes  after 
death.  Men  fear  judgment,  the  unknown  future,  the 
untried  eternity.  The  soul  of  the  guilty  is  unpre- 
pared for  the  final  leap  in  the  dark.  Seneca  and  Euse- 
bius  took  the  view  that  death  is  a  great  offering  to 
the  murderer  himself,  freeing  him  from  spiritual  ob- 
liquity. The  Reverend  Mr.  Cotton,  for  more  than  a 
dozen  years  the  chaplain  or  ordinary  at  Newgate, 
testifies  that  he  never  saw  a  case  of  genuine  conver- 
sion except  in  prisoners  who  were  to  be  executed. 
Such  has  been  the  testimony  of  many  other  clergymen 


A  DEFENSE  OF  CAPITAL-PUNISHMENT    117 

who  have  witnessed  the  solemn  scenes  marking  the 
last  hours  of  condemned  men. 

The  Prison  Discipline  Society  of  America  reported, 
in  1846,  that  the  death  penalty  could  not  be  abolished 
without  great  danger  to  society. 

Every  part  of  the  divine  covenant  with  Noah  was 
marked  with  great  mercy,  as  if  the  divine  justice 
had  been  fully  displayed  and  vindicated  with  earth's 
cleansing  by  the  Deluge;  and  now  God  blessed  his 
creatures,  formed  new  institutions  and  revealed  prom- 
ises for  their  good.  As  an  institution  of  benevolence, 
the  death  penalty  was  promulgated  for  the  welfare  of 
all  mankind. 

The  ordinance  in  Genesis  is  a  command,  nothing 
else.  This  has  been  the  decision  of  all  the  greatest 
commentators  on  the  text  of  the  Bible.  Hammond, 
Grotius,  Calvin,  Matthew  Henry,  Michaelis  and  Rosen- 
mueller  take  this  view.  The  Hebrew  construction  per- 
mits of  no  other  interpretation  than  that  the  word  is 
one  of  command.  The  great  scholars  like  Gesenius, 
Stuart  and  Nordheimer  say  that  the  shall  makes  an 
indisputable  imperative  in  the  by  man  shall  his  blood 
be  shed,  or  in  whatever  form  the  text  is  rendered. 
This  view  is  corroborated  in  Proverbs  xxviii.,  17,  in 
"shall  flee  to  the  pit,"  which  means  shall  immediately 
die.  It  can  not  mean  will,  for  he  will  not  die  if  he  can 
help  it. 

The  statute  has  the  following  great  points  in  its 
favor :  Priority  over  all  other  legislation ;  comprehen- 
siveness; unlimited  duration.  It  is  clearly  meant  for 
all  mankind,  and  its  authority  is  to  continue  as  long  as 
the  race.  As  it  is  solely  from  God,  God  only  can  repeal 
it.    He  never  has  repealed  it,  and  it  is  binding  to-day. 

Some  opponents  of  the  death  penalty  say  the  law 


118  BY  RIGHT  OF  SWORD 

has  been  repealed.  When  did  its  application  stop? 
That  first  law  of  God  in  this  world  is  alive  to-day.  You 
can  not  point  to  a  spot  in  the  stream  of  time  or  history 
and  say,  "Here  that  law  stops."  Under  an  old  rule, 
the  law  stands  while  the  reason  remains.  The  Saviour 
said  that  not  one  jot  or  tittle  should  pass  from  the 
law  till  all  should  be  fulfilled.  No  government  has 
the  right  to  legislate  against  divine  legislation,  nor  has 
any  government  the  right  to  abolish  laws  against  steal- 
ing and  robbery.  The  statute  is  even  more  binding 
than  the  Decalogue,  for  the  Decalogue  was  addressed, 
''Hear,  0  Israel,"  but  the  prefix  to  the  statute  against 
murder  was  addressed  to  all  the  inhabitants  of  the 
world. 

A  law  without  a  penalty  is  nothing.  It  would  fail  to 
protect  the  innocent  against  the  passions  of  the  de- 
praved. Twelve  hundred  years  after  that  prime  law 
was  promulgated  we  find  a  temple  in  a  land  free  from 
idols,  in  a  wonderful  country  of  cedar  and  palm,  a 
bright  spot  on  the  earth.  The  spirit  of  holiness  per- 
meates the  people,  an  elevated  and  a  favored  race.  Do 
we  find  this  people  rejecting  the  ancient  code  as  bar- 
barous? Does  God  repeal  it?  We  open  a  book  of  di- 
vine legislative  wisdom,  communicated  to  their  great 
law-giver,  and  we  read:  "Whose  killeth  any  person, 
the  murderer  shall  be  put  to  death."  We  read  also, 
**Ye  shall  take  no  satisfaction  (substitute)  for  the  life 
of  the  murderer,  *  *  *  ^^t  he  shall  surely  be  put 
to  death."  It  is  said  that  "blood  defileth  the  land," 
and  again  that  "the  land  can  not  be  cleansed  of  the 
blood  shed  therein,  but  by  the  blood  of  him  that  shed 
it."  See  Numbers  xxxv.,  30-84,  Does  this  appear  to 
be  an  abrogation  of  the  Noachian  code  ? 


A  DEFENSE  OF  CAPITAL-PUNISHMENT    119 

The  common  law  of  the  world,  expressed  to  Noah, 
and  many  local  enactments  for  particular  reasons  and 
a  local  people  uphold  the  one  ancient  principle.  A 
thousand  years  after  the  Mosaic  dispensation  Jesus 
said:  "Think  not  that  I  am  come  to  destroy  the  law 
or  the  prophets.  I  am  not  come  to  destroy,  but  to 
fulfill." 

THE  SWORD  JUSTIFIED  B.  C. 

Thirty  years  after  the  Crucifixion  (Romans  xiii., 
1-4)  the  ruler  who  bears  the  sword  is  said  to  be  a 
minister  of  God  to  execute  wrath  upon  the  wicked. 
This  passage  shows  the  divine  origin  of  government 
and  the  power  to  inflict  death.  The  sword  is  always 
a  symbol  of  power,  the  power  of  the  state.  Paul's 
sanction  shows  that  he  realized  that  the  Christian  Dis- 
pensation was  the  same  as  the  Noachian  ordinance. 
Since  the  Roman  Government  had  not  abolished  capital- 
punishment  when  Paul  spoke  before  Festus,  no  other 
possible  interpretation  of  his  words  is  to  be  thought 
of  for  a  moment.  Paul  was  not  addressing  a  com- 
munity of  Quakers.  The  phrase  "bearing  the  sword" 
meant  only  one  thing  in  those  days — the  power  over 
life  and  death. 

The  pen  of  inspiration  was  never  dipped  in  deeper 
colors  than  the  crimson  which  marked  the  primal 
curse  on  murder,  Isaiah  complains  that  the  people  had 
grown  lenient  and  that  the  land  was  filled  with  wicked- 
ness. 

When  the  Jewish  code  was  strictly  observed  among 
the  people,  life  in  Jerusalem  was  more  sacred  than 
anywhere  on  the  globe.  The  sense  of  the  sacredness 
of  life  permeated  the  souls  of  the  people.  King  David, 
about  to  die,  could  not  rest  while  he  remembered  that 


120  BY  RIGHT  OF  SWORD 

the  crime  of  murder  in  one  of  his  own  captains  had 
gone  unpunished.  Moved  by  the  invisible  spirit  of 
Law  and  Justice,  David  left  a  dying  injunction  to  his 
great  son  Solomon  that  the  blood  of  Amasa  and  Abner, 
whom  Joab  slew,  should  be  avenged  as  directed  by 
God's  law. 

When  God  says,  "Resist  not  evil!"  he  speaks  to 
individuals,  not  to  civil  governments,  which  were 
authorized  to  resist  evil  and  punish  crime.  God's  own 
vengeance  is  executed  by  the  sword-bearer,  the  ruler. 
Though  an  individual  man  might  forgive  his  enemy, 
even  the  murderer,  he  must  not  shield  that  murderer 
from  the  lawful  authorities  or  from  the  penalty  of  the 
law. 

The  justice  of  the  death  penalty  for  murder  has 
always  been  recognized  by  humanity.  Its  authority, 
even  among  men,  is  from  a  time  transcending  the 
memory  of  man  and  the  records  of  history.  Aristotle 
found  it  was  not  peculiar  to  Athens,  Macedon  or  Per- 
sia, but  it  was  coextensive  with  mankind  and  prevalent 
among  all  civilized  and  some  barbarous  nations.  The 
most  ancient  of  poets  called  the  death  penalty  a  holy 
law. 

The  golden  chain  of  argument  for  the  validity  of  the 
death  penalty  runs  like  a  furrow  of  light  from  Genesis 
to  the  Apocalypse.  (See  Revelation  xiii.,  10:  "He 
that  killeth  with  the  sword  must  be  killed  by  the 
sword.'*  All  the  great  commentatois  refer  to  Genesis 
for  the  authority  of  John.  The  Greek  verb  used  in 
this  connection  or  referring  to  the  death  penalty  al- 
ways carries  the  idea  of  necessity,  propriety,  fitness 
and  moral  obligation.  This  is  a  point  that  should  be 
borne  in  mind  at  all  times. 

The  law  requiring  a  life  for  a  life  is  not  vindictive^, 


A  DEFENSE  OF  CAPITAL-PUNISHMENT     121 

but  vindicative.  The  law  is  solemn,  deliberate,  com- 
bining immutable  sternness  and  great  human  sym- 
pathy. The  prisoner  is  allowed  every  doubt;  court, 
jurors  and  spectators  hope  he  can  prove  his  inno- 
cence; the  verdict  of  guilty  is  pronounced  with  hesi- 
tation and  sorrow,  and  the  community,  moved  to  pity, 
is  not  vindictive.  The  death  of  the  criminal  thus  con- 
victed is  salutary  and  beneficial.  The  element  of  malice 
is  rather  in  frowning  prisons  of  living  death  than  on 
the  gallows,  where  it  is  absent. 

There  ought  to  be  a  penalty  high,  awful,  distinctive, 
to  make  the  crime  of  murder  iq  its  retribution,  as  it 
stands  in  its  guilt,  paramount  to  every  other.  The 
conscience  of  society  should  be  educated  in  the  view  of 
such  a  penalty;  and  if  it  were  not,  or  where  it  is  not 
thus  educated,  poor  and  cheap  indeed  is  the  estimate 
placed  on  the  sacredness  of  human  life. 

ABOUT  LIGHT  PUNISHMENT. 

A  great  writer  says  with  much  truth  that  in  all 
secondary  punishments  the  convict  is  fed,  clothed, 
well  lodged  and  attended  in  both  health  and  sick- 
ness— always  secure  from  the  frosts  of  winter  and  the 
teeth  of  wild  animals,  always  sure  he  can  not  die  of 
starvation,  exposure  or  want.  The  death  penalty  alone 
inflicts  punishment  from  which  there  can  be  no  escape. 
If  a  man  will  not  refrain  from  murder  for  fear  of 
death,  then  he  will  murder  much  the  more  when  that 
awful  fear  is  removed. 

Make  the  penalty  of  death  absolutely  certain,  and  its 
restraining  power  will  be  immeasurable.  When  you 
abolish  it,  you  occasion  a  general  degradation  of  the 
moral  sense  and  of  values  in  punishment ;  you  practic- 
ally teach  that  there  is  no  difference  between  the  guilt 


122  BY  RIGHT  OF  SWORD 

of  murder  and  that  of  mere  stealing  or  forgery.  The 
wicked  butcher  of  a  man  and  the  embezzler  may  each 
hope  for  care  in  a  beautiful  prison,  with  songs,  books, 
music,  and  final  parole.  What  you  refuse  to  do  for  the 
family  and  friends  of  the  murdered  man,  you  may  be 
sure  the  malignity  of  revenge  and  lynch  law  will  ac- 
complish. To  loosen  the  certainty  of  the  statute  de- 
manding the  murderer 's  life  is  to  loosen  a  fundamental 
pillar  of  society. 

Life  is  the  most  sacred  of  all  possessions,  is  itself  all, 
hence  death  is  the  end  most  feared,  the  most  terrible 
of  all  punishments.  Life  must  be  guarded  by  the 
most  certain  and  terrible  of  all  punishments.  Love 
your  neighbor  as  yourself.  How  much  do  you  love 
yourself  ?  So  much  that  you  would  kill  a  murderer  to 
save  your  own  life.  Then  you  are  bound  to  do  the 
same  for  your  neighbor.  If  the  government  could  bt 
present  when  a  murder  is  about  to  be  committed,  it 
would  be  justified  in  killing  the  wretch  to  prevent  the 
crime. 

ANOTHER  STURDY  OPINION. 

One  of  the  most  thorough  of  all  Protestant  com- 
mentaries on  the  Scriptures  is  that  edited  by  John 
Peter  Lange  and  a  number  of  European  authorities 
of  high  standing,  and  the  illustrious  Peter  Schaff,  who 
collaborated  with  a  band  of  America's  most  scholarly 
authorities  in  exegesis.  In  volue  I,  page  327,  the  fol- 
lowing, in  substance,  appears: 

For  in  the  image  of  GcmI  made  he  man.  In  murder  the 
crime  is  against  the  spirit,  in  which  the  divine  kinship  re- 
veals itself.  In  man  there  is  assailed,  by  the  murderer, 
the  image  of  God.  In  such  passages  as,  "Be  ye  fruitful," 
and  "Bring  forth  abundantly  in  the  earth,"  the  value  of 


A  DEFENSE  OF  CAPITAL-PUNISHMENT     123 

human  life  forbids  its  being  wasted,  and  commands  its 
Increase. 

According  to  Knobel  and  other  commentators  God  had 
established  no  covenant  with  the  Antediluvians,  but  his 
covenant  with  Noah,  with  his  race,  and  with  the  whole 
earth  (Genesis,  ix,  8-17)  instituted  humane  culture  and 
order,  especially  of  the  magistracy,  of  the  penal  judicial 
office,  including  personal  defense  and  defense  in  war.  See 
page  330. 

On  page  331  it  is  announced  by  the  commentators  that 
the  fundamental  principle  for  all  time  is  this,  that  the 
murderer,  through  his  own  act,  has  forfeited  his  right  to 
human  society,  and  incurred  the  doom  of  death.  The  pre- 
Noachian  era,  under  Adam  and  his  descendants,  had  been 
a  failure.  God's  lenity  with  Cain  was  a  revelation  of  man's 
iniquity  when  the  death  penalty  is  absent.  After  Cain's 
life  was  spared  no  murderer  had  the  fear  of  God  in  his 
heart.  By  the  curse  of  God  Cain  was  punished  by  ban- 
ishment, in  a  sense,  to  the  land  of  Nod.  He  was  excom- 
municated and  driven  by  self-banishment  away  from  his 
fellows. 

The  divine  statute  (Genesis  ix,  6)  is  sometimes  assailed 
on  grounds  that  are  no  less  an  abuse  of  language  than 
they  are  a  preversion  of  reason  and  Scripture.  Reform- 
ers, so-called,  are  likely  to  call  the  taking  of  the  life  of 
the  murderer  revenge,  no  distinction  being  made  between 
revenge  and  vengeance.  Revenge  would  be  the  proper  word 
to  use  If  punishment  were  from  expediency  only,  as  the  life 
imprisonment  proposed  by  the  abolitionists  in  lieu  of  the 
gallows  would  be.  The  word  revenge  always  denotes  some- 
thing angry  and  personal,  while  the  word  vengeance  Is  the 
requital  of  justice — holy,  invisible  and  always  free  from 
passion.  In  ancient  times,  as  shown  later.  It  was  hedged 
about  with  Impressive  expiatory  ceremonies,  all  Intended 
to  remind  the  offender  of  obligation  to  God. 

On  this  blunder,  although  It  is  often  a  malicious  mis- 
representation, the  anti-gallows  advocates  have  coined  the 
almost  senseless  phrase  "legalized  murder."  By  the  same 
blunder  or  malicious  interpretation  there  Is  a  widespread 
attempt  to  set  the  Old  Testament  In  opposition  to  the  New, 


124  BY  RIGHT  OF  SWORD 

notwithstanding  the  express  words  of  Christ  to  the  con- 
trary. 

If  the  murderer  is  punished  by  death  simply  because 
he  deserves  it,  also  because  God  has  commanded  it,  and 
because  the  magistrate  and  executioner  are  only  carrying 
out  the  command  of  God,  then  all  opposition  to  the  death 
penalty  on  the  ground  that  it  is  revengeful,  must  fall  to 
the  ground,  having  neither  force  nor  relevancy. 

Under  the  strictly  orthodox  view,  reformation  and  pre- 
vention will  never  be  effected  under  a  judicial  system  which 
shuts  out  all  moral  ideas.  There  may  be  a  seeming  re- 
form, but  it  has  no  ground  in  conscience,  being  accompa- 
nied by  no  conTiction  of  just  deserts  and  the  duty  of  ex- 
piation. Deterrence  is  really  in  the  terror  of  invisible 
justice. 

Under  the  view  of  the  commentators  men  are  not  merely 
permitted  to  take  the  life  of  the  murderer,  but  they  are 
unconditionally  commanded  to  do  so.  In  no  other  way 
can  the  community  itself  escape  the  awful  responsibility 
of  violating  a  command  of  God  on  the  one  hand,  and  suf- 
fering from  an  increase  of  crimes  of  violence,  on  the  other. 
Impunity  makes  the  whole  land  guilty.  From  time  imme- 
morial, in  pre-Christian  and  in  non-Christian  countries, 
as  in  Christian  lands,  "a  voice  cries  to  heaven."  This  is 
not  an  idle  phrase,  for  conscience,  the  judgment  of  man- 
kind in  all  ages,  is  really  personified  as  a  voice.  Murder 
unavenged  has  always  been  regarded  among  right  think- 
ing races  as  a  pollution  of  the  land.  See  Numbers,  xxxv, 
31,  33;  Psalms  cvi,  38;  Micah,  iv,  2.  Here  the  land  can 
not  be  cleansed  of  the  blood  that  is  shed  therein,  but  by 
the  blood  of  him  that  shed  it. 

Such  is  the  strong  language  of  the  Scriptures  as  we  find 
it  in  Genesis,  in  the  statute  of  the  Pentateuch — a  par- 
ticular application  of  the  general  law — and  in  the  Proph- 
ets. Such,  too,  is  the  expression  of  all  antiquity — so  strong 
and  clear  a  voice  of  humanity  from  the  far  away  yester- 
days that  we  can  only  regard  it  as  an  echo  of  the  still 
more  ancient  voice  reported  by  Aeschylus  and  prevalent 
in  almost  terrific  and  revolting  form  in  Greek  tragic  po- 
etry, showing  that  the  deliberate  judgment  of  all  our 
ancestors  In  every  age  and   clime — the  seers,  statesmen. 


A  DEFENSE  OP  CAPITAL-PUNISHMENT    125 

poets  and  prophets — has  been  that  he  who  sheddeth  man's 

blood  shall  himself  be  slain.     Note  this  in  Aeschylus: 

There  is  a  law  that  blood  once  poured  on  earth 
By  murderous  hands  demands  that  other  blood 
Be  shed  in  retribution.     From  the  slain 
Erynnys  calls  aloud  for  vengeance  still. 
Till  death  in  justice  meet  be  paid  for  death. 

Also  note  the  following  passage  from  far  deeper  antlq- 

ity,  quoted  by  the  commentators: 

For  blood  must  blood  be  shed.     A  law  by  aye 
Tlurlce  holy  on  the  murderer's  guilty  head 
This  righteous  doom  demands. 

A  UNIVERSAL  STATUTE. 

In  the  solemn  covenant  with  Noah  and  the  race  fol- 
lowing him,  which  includes  all  succeeding  ages,  the  stat- 
ute commanding  the  death  penalty  for  murder  is  universal 
— a  law  for  all  races  and  all  time.  It  was  not  a  partic- 
ular law  for  the  Jews,  as  sometimes  glibly  charged.  The 
commentators  say  (page  333):  "The  particular  law  after- 
wards made  for  the  Jews  refers  back  to  this  universality 
in  that  repeated  declaration  which  makes  it  differ  from  aU 
other  Jewish  laws  that  do  not  contain  that  declaratio;[i, 
viz:  'This  shall  be  a  statute  to  you  in  all  your  places, 
in  all  generations.'  The  language  is  universal,  the  rea- 
son is  universal,  the  consequences  of  impunity  are  uni- 
versal." In  other  words,  murder  is  as  great  an  offense  in 
one  age  and  place  as  in  another,  and  the  punishment 
should  remain  unalterably  as  great  as  the  crime. 

The  law  but  expresses  the  sentiment  of  all  antiquity,  a 
thing  we  may  not  despise  in  our  search  to  ascertain  what 
is  fundamental  and  eternally  right  in  ideas  pertaining  to 
ethics  and  jurisprudence.  The  law  that  prescribes  cap- 
ital-punishment for  homicide  has  always  been  universal.  In 
the  far  away  depths  of  antiquity  the  very  superstitions 
connected  with  the  infliction  of  the  death  penalty,  as  shown 
in  expiatory  ceremonies,  are  evidence  of  the  abiding  sense, 
the  deep  conviction  of  the  human  mind  that  this  crime, 
above  all  others,  must  have  its  adequate  atonement;  and 
that  this  atonement  must  be  life  for  life,  blood  for  blood. 
The  Noachian  covenant,  however,  must  not  be  confused 
with  the  reference  and  teachings  of  Exodus  regarding  an 
eye  for  an  eye,  a  tooth  for  a  tooth. 


♦ 


126  BY  RIGHT  OP  SWORD 

The  terrific  language  and  harsh  judgments  of  past  ages, 
particularly  in  ancient  Greece,  only  show  the  strength 
and  universality  of  the  feeling  against  the  crime  of  mur- 
der, an  offense  always  deemed  so  rank  as  to  smell  to 
heaven  because  of  the  eldest,  primal  curse  upon  it.  In 
all  ages,  excepting  possibly  the  present  age  of  fads,  there 
has  been  an  innate  sense  of  the  justness  on  which  the 
death  penalty  for  murder  is  founded.  Aristotle  reckons 
the  punishment  of  murder  by  death  among  the  universal, 
unwritten^  laws  referred  to  and  thus  named  by  Sophocles 
in  the  Antigone.  No  man  knows  whence  these  ancient 
codes  against  murder  sprang,  but  it  is  Known  that  they 
are  the  cumulative  experiences  of  all  generations  of  men, 
the  judgment  and  conscience  of  the  race  as  expressed  con- 
cerning the  one  crime  of  crimes  that  has  always  offended 
rational  human  beings.  The  death  penalty  has  been  sanc- 
tioned from  time  immemorial  by  the  wisest  and  best  men 
of  every  race  and  clime.  In  the  Koran  the  thought  is 
expressed,  as  in  other  ancient  books,  that  "he  who  slays 
one  man  intentionally  and  wantonly  is  as  though  he  had 
slain  all  men."  He  is  the  enemy  of  society,  of  the  race. 
He  has  committed  an  assault  against  humanity.  As  far 
as  lies  in  his  power  he  has  aimed  at  the  destruction  of  the 
whole  human  race,  has  defied  the  sacred  codes  of  the  ages, 
has  polluted  the  land,  profaned  the  works  of  God  as  rep- 
resented in  man,  his  image. 

In  Romans,  xii,  19,  and  in  chapter  xiii,  the  magistracy 
is  ordained  by  God  to  execute  the  divine  law  against  mur- 
der— God's  justice  not  merely  delegated,  but  imposed  upon 
society,  thus  making  capital-punishment  the  very  antithe- 
sis, the  most  opposite  possible  act  to  revenge.  The  judicial 
ending  of  a  murderer's  life,  in  obedience  to  a  just  judg- 
ment and  pursuant  to  a  fair  trial,  is  a  sacrifice,  an  expia- 
tion, and  those  who  object  to  thus  disposing  of  the  mur- 
derer lose  sight  of  the  positive  commandments  of  God. 
They  also  forget  the  relation  between  human  and  eternal 
justice.  "For  rulers  are  not  a  terror  to  good  works,  but 
to  the  evil." 

Those  who  speak  with  contempt  of  the  divine  law,  are 
constantly  railing  at  society  and  branding  it  as  the  reaS 
criminal.     Those  who  inflict  the  death  penalty  on  the  mur- 


A  DEFENSE  OF  CAPITAL-PUNISHMENT    127 

derer  in  obedience  of  divine  law,  executing  the  decrees 
of  justice  on  the  enemy  of  mankind,  are  denounced  as 
wicked  criminals.  Such  critics  snap  their  fingers  at  law 
and  order  and  are  carried  away  by  a  sentimentalism  as 
dangerous  as  it  is  ridiculous. 

"The  powers  that  be  are  ordained  of  God.  Whosoever 
resisteth  the  power,  resisteth  the  ordinance  of  God."  This 
Is  justification  for  governments,  for  the  execution  of  law, 
and  this  part  of  the  Scriptures  makes  non-resistance  and 
the  so-called  doctrine  of  love  impossible. 

AN  EPISCOPAL  VIEW. 

The  Reverend  Charles  H.  Chandler,  of  the  Episcopal 
Church,  San  Luis  Obispo,  California,  suggests  the  follow- 
ing: 

"The  penalty  of  violated  law  Is  suffering  the  congO' 
quences  of  one's  violation  of  that  law.  Violation  has  two 
consequences — vengeance  and  (conditionally)  remorse,  or 
sorrow.  Regarding  the  first  of  these,  it  may  be  said  that 
the  guilty  one  has  violated  a  law  governing  man's  per- 
sonal welfare,  as  ordained  by  God.  The  rules  governing 
man's  welfare  and  regulating  his  conduct  are  of  God,  hence 
it  is  that  a  just  God,  true  to  himself,  must  exact  vengeance, 
as  you  have  defined  the  word  In  the  foregoing.  He  exacts 
this  vengeance  through  society,  acting  in  his  stead.  In  re- 
spect to  remorse,  the  punishment  of  the  murderer  may,  and 
often  does,  result  in  his  sorrow  for  the  act,  which  is  re- 
morse or  penitence.  Thus  Is  there  produced  In  him  that  con- 
dition without  which  he  can  not  hope  to  deserve  the  for- 
giveness of  God,  either  in  this  world  or  the  hereafter. 

"That  the  death  penalty  does  not  always  produce  re- 
morse is  no  argument  against  Infiicting  it,  for  the  reason 
that  the  effect  of  the  penalty  Is  conditioned  largely  by  the 
Individual  himself.  If  he  accepts  the  penalty  In  the  right 
spirit  the  result  follows  naturally;  hence  It  Is  that  the  only 
certain  method  by  which  the  reformation  of  the  Individual 
may  reasonably  be  expected  is  a  secondary  consequence 
following  the  sentence  of  death,  and  this  really  is  the  end 
sought  by  those  who  aim  abolition  of  the  penalty,  al- 
though abolition  would  really  thwart  their  alms.     As  all 


128  BY  RIGHT  OF  SWORD 

nature  revolts  at  murder,  it  should  be  punished  in  the 
way  commanded  by  God — by  death." 

Thus  we  come  back  to  the  old  law.  "The  murderer 
shall  be  surely  put  to  death."  And  again:  "This 
shall  be  a  statute  unto  you  throughout  all  your  dwel- 
lings, in  all  your  generations. ' '  See  Ezekiel,  also  Num- 
bers XXXV,  29,  for  the  quotation. 

Finally,  the  Commoner  of  April  11,  1913,  contains 
an  able  article  on  the  death  penalty  in  Holy  Writ, 
from  the  pen  of  Doctor  H.  A.  Hughes.  He  shows  that 
Christ  taught  that  the  wages  of  sin  is  death  in  the 
form  of  eternal  punishment,  which  is  more  severe  than 
hanging  a  man  for  murder.  He  taught  everywhere 
the  doctrine  of  rewards  and  punishments,  as  in  the 
parable  of  the  unworthy  servant,  and  when  he  upset 
the  tables  of  the  money-changers  and  scourged  them  in 
the  temple.  The  babe  knows  that  kisses  and  caresses 
will  be  its  reward  for  obedience,  and  some  slight  pun- 
ishment for  disobedience. 

Four  attempts  were  made  on  the  life  of  Queen  Vic- 
toria during  the  first  year  of  her  reign.  Parliament 
met  and  passed  a  law  prescribing  the  death  penalty 
for  an  attempt  on  the  life  of  the  sovereign.  She  was 
never  again  attacked  during  her  long  reign. 

As  Solomon  had  three  murderers  put  to  death  dur- 
ing the  building  of  the  temple,  so  we  should  put  our 
murderers  to  death  to-day. 


'^y       CHAPTER  V.       \/ 

A  Summary  of  Opinions 

THERE  is  far  from  harmony  among  the  advocates  of 
the  abolition  of  capital-punishment.  They  see  the 
abuses  of  the  pardon  system,  the  dangers  to  convicts  and 
keepers  who  are  thrown  in  contact  with  desperate  men, 
and  the  farcical  brevity  of  so-called  life  terms. 

In  The  Review,  a  monthly  periodical  published  by  the 
National  Prisoners'  Aid  Association  (March  and  April  is- 
sues, 1912),  sqme  interesting  facts  are  presented.  The 
editor  gives  a  symposium  on  the  subject  of  capital-pun- 
ishment. It  is  the  substance  of  correspondence,  he  says, 
received  from  approximately  one  hundred  penitentiary  war- 
dens, superintendents,  and  practical  penologists.  Those 
who  advocate  the  death  penalty  fear  the  disastrous  results 
of  its  abolition.  Secretary  Thompson,  of  the  Connecticut 
Prison  Association,  though  much  shocked  by  the  taking 
of  life  in  prisons  under  legal  sentences,  said:  "It  is  a 
grave  question  whether  our  civilization  has  progressed  to 
the  point  where  we  can  give  up  the  restraining  influence 
of  the  severe  penalty." 

In  this  connection  it  might  be  asked  what  the  progress 
of  civilization  has  to  do  with  the  infliction  of  the  death 
penalty,  so  long  as  the  progress  of  civilization  has  not  pre- 
vented the  birth  of  murderers.  It  is  not  a  question  as  to 
how  much  progress  society  as  a  whole  has  made,  as  a  ques- 
tion of  how  little  progress  the  murderers  have  made  to- 
ward becoming  fit  for  human  association.  All  these  dis- 
cussions as  to  the  progress  of  civilization  are  absolutely 
irrelevant,  having  no  more  to  do  with  penology  than  with 
arithmetic  or  painting  in  water  colors.  The  pure  and  sim- 
ple question  is  this.  Why  should  society,  seeking  to  pro- 

129 


130  BY  RIGHT  OP  SWORD 

tect  itself,  preserve  the  lives  of  the  anti-social,  the  morally 
hopeless,  the  economically  disastrous? 

It  is  significant  that  there  is  much  dissatisfaction  with 
the  Ijfe  imprisonment  law  in  Wisconsin.  There  has  been 
much  discontent  ever  since  the  abolition  of  the  death  pen- 
alty. F.  G.  Swoboda  reports  for  the  symposium  that  life 
prisoners  are  eligible  to  parole  in  sixteen  years  and  three 
months.  When  strong  Influences  are  brought  to  bear, 
many  are  pardoned  within  a  few  years  after  being  con- 
victed. 

In  Minnesota  there  is  unrest  over  the  law,  mild  and 
poorly  enforced,  against  murder.  The  county  attorneys  of 
the  State,  at  their  last  annual  meeting  (probably  1912), 
passed  resolutions  asking  the  Legislature  to  restore  cap- 
ital-punishment for  murder  in  the  first  degree. 

From  a  source  other  than  The  Review's  symposium  the 
author  of  this  book  learns  that  an  eminent  Episcopal  rec- 
tor recently  reported  that  the  life  imprisonment  law  of 
Minnesota  was  generally  regarded  as  a  farce  and  that  life 
imprisonment  is  never  such  in  fact.  It  has  little  deterrent 
influence  in  cases  of  cold-blooded  criminals. 

GOVERNORS    FOR   CAPITAL-PUNISHMENT. 

The  following  governors  express  themselves  as  heartily 
in  favor  of  capital-punishment,  especially  in  grave  cases, 
or  when  the  jury  has  recommended  such  punishment: 
Mann,  of  Virginia;  Hadley,  of  Missouri;  Gilchrist,  of  Flo- 
rida; Carey,  of  Wyoming;  Hay,  of  Washington;  Osborn, 
of  Michigan.  Governor  Burke,  of  North  Dakota,  reports 
that  "he  does  not  feel  that  we  have  arrived  at  that  stage 
of  civilization  where  we  can  do  away  with  it  altogether." 

Like  Secretary  Thompson,  quoted  above,  this  Governor 
seems  to  have  missed  the  point  that  where  "we  have  ar- 
rived" has  nothing  to  do  with  the  graver  question  that 
concerns  the  point  to  which  the  murderer  has  arrived. 

A  number  of  those  reporting  felt  that  life  imprisonment 
would  be  preferable  if  it  were  life  imprisonment,  in  fact, 
beyond  hope  of  escape  or  pardon.  The  editor  says  that 
"the  IF  bulked  large  in  all  these  answers."  In  other  words, 
the  ifs,  buts,  and  other  qualifications  negatived  the  sup- 
positions. 


A  DEFENSE  OF  CAPITAL-PUNISHMENT    131 

The  Superintendent  of  the  Territorial  Indian  School  at 
Benson,  Arizona,  fears  that  "some  soft  governor,  under 
life  imprisonment,  would  grant  pardons  and  the  criminals 
would  kill  others."  This  is  a  sane  fear,  borne  out  in 
some  of  the  foregoing  statements,  as  in  human  experience 
the  world  over. 

Superintendent  F.  H.  Briggs,  of  the  State  Industrial 
School  at  Industry,  New  York,  said:  "No  matter  how 
atrocions  the  crhne,  some  influence  is  always  found  to  se- 
cure a  remittance  of  the  sentence  of  imprisonment  within 
a  few  years." 

This  view  was  emphasized  and  heartily  indorsed  by  the 
Superintendent  of  the  Hopeville,  Georgia,  Industrial  Farm, 
and  by  Judge  Garver,  of  Topeka,  Kansas,  where  there  is 
no  death  penalty.  The  Judge  said:  "Unfortunately  we 
see  too  many  instances  where  executives  have  been  influ- 
enced to  turn  felons  loose  again  upon  society,  thus  giving 
hope  and  encouragement  to  every  one  of  that  class  to  risk 
his  chances  with  the  law,  rather  than  abstain  from  crime." 

A  number  of  those  making  reports  felt  that  some  crim- 
inals "are  so  totally  depraved  in  nature  that  death  is  ad- 
visable." Several  contended  that  incarceration  has  no  ter- 
rors for  the  brutal  criminal  and  that  lynchings  would  in- 
crease under  life  imprisonment.  This  view  was  empha- 
sized by  Warden  M.  L.  Brown,  of  the  West  Virginia  pen- 
itentiary. 

Warden  Sale,  of  North  Carolina's  penitentiary,  strongly 
urged  capital-punishment  for  extreme  cases.  He  said  that 
long  experience  confirmed  the  belief  in  the  eflBcacy  of  the 
gallows.  He  added:  "The  murderous,  dangerous  criminal 
becomes  sullen  and  morose,  and  refuses  to  obey  rules. 
Upon  him  punishment  has  to  be  inflicted  to  secure  from 
him  obedience  to  rules.  He  grows  worse  and  becomes 
desperate  and  will  take  any  chances  to  escape,  even  if 
secretly  or  openly  to  slay  his  keeper;  for  he  knows  there 
is  no  greater  punishment  than  life  imprisonment,  and  will 
not  hesitate  to  commit  any  crime  to  obtain  liberty  or  re- 
venge. The  lives  of  keepers  and  fellow-convicts  would  be 
endangered  if  criminals  of  this  type  were  to  realize  that 
a  life  imprisonment,  with  hope  of  pardon  or  escape,  is  the 
limit.     A   hopeless   murderer  should   be  hanged.      0£Qcer8 


132  BY  RIGHT  OF  SWORD 

and  inmates  of  penitentiaries,  as  well  as  society,  should 
be  protected  from  the  violent  and  vicious  destroyers  of 
human  life." 

SOME  SHALLOW  ARGUMENTS. 

The  principal  arguments  against  the  gallows  were  that 
it  does  not  deter,  because  so  seldom,  used — which  is  like 
the  tooth-ache  medicine  that  did  not  cure  because  it  was 
not  tried.  In  other  words,  this  is  not  an  argument  at  all. 
Such  persons  should  study  the  effect  of  the  gallows  where 
used,  say,  in  England. 

Several  advocated  sterilization  of  criminals.  Miss  Kate 
Barnard,  the  charities  commissioner  of  Oltlahoma,  expressed 
this  view.  She  would  then  send  them  to  an  industrial  col- 
ony for  life,  with  no  chance  of  pardon  or  escape.  A  new 
human  nature  will  be  required  before  her  conditions  can 
be  complied  with. 

Mrs.  E.  C.  Shippen,  of  the  Virginia  Manual  Training 
School,  was  firmly  in  favor  of  capital-punishment. 

Warden  Scott,  of  the  New  Hampshire  State  Prison,  be- 
lieves in  capital-punishment  in  cases  of  premeditation  only. 
Some  of  the  Southern  penologists  would  limit  the  death 
penalty  to  cases  of  rape.  Warden  Henry  Wolfer,  of  Min- 
nesota, would  limit  the  death  penalty  to  cases  where  an 
officer  of  a  penitentiary  or  other  prison  is  killed  by  a  con- 
vict. The  man  who  butchers  his  father  and  mother,  slays 
his  wife  and  children,  under  this  policy,  would  become  a 
favorite  as  against  the  convict  who  might  slay  a  brutal 
keeper  of  his  cage. 

Superintendent  P.  J.  McDonnell,  of  the  Elmira  Reform- 
atory, advocated  life  imprisonment  with  no  chance  of  par- 
don, and  he  would  put  the  life  prisoner  at  work  in  a  sol- 
itary cell,  with  exercise  in  solitude,  and  no  chance  ever 
to  see  a  visitor.  In  other  words,  slow  death  rather  than 
swift — insanity,  the  dwarfing  of  the  mental  faculties,  and 
the  cultivation  of  self-regarding  desires,  as  explained  by 
Herbert  Spencer,  until  the  man  in  the  cage  should  become 
a  wild  beast. 

Warden  Osborne,  of  New  Jersey,  favored  this  view,  but 
opposed  capital-punishment  as  a  violation  of  the  mandates 
of  God. 


A  DEFENSE  OF  CAPITAL-PUNISHMENT    133 

A  LAND  OF  MURDERERS. 

With  more  than  seven  thousand  murders  each  year  in 
the  United  States — more  than  seventy-seven  to  each  mil- 
lion of  the  population — it  is  surprising  that  only  ahout 
one  murderer  in  each  hundred  is  convicted.  Of  those  con- 
victed only  a  fraction  are  ever  put  to  death,  many  serve 
comparatively  short  terms,  and  many  more  are  either  pa- 
roled or  pardoned. 

In  Germany  the  convictions  for  murder  are  ninety-five 
per  cent,  while  in  England  the  certainty  of  the  rope  for 
premeditated  murder  has  reduced  that  crime  to  a  greater 
extent  than  in  any  country  on  the  globe.  That  the  pun- 
ishment for  fiendish  crimes  is  swift  and  drastic  in  the 
United  Kingdom  may  be  shown  in  almost  every  case  that 
comes  to  trial  either  in  England  proper  or  in  her  colonies 
beyond  the  seas — and  the  punishment  is  capital.  An 
American,  Crippen,  slays  his  wife  and  disappears.  Within 
a  few  weeks  he  is  caught,  tried  and  hanged.  Similar 
crimes  in  the  United  States  are  punished,  if  at  all,  at  the 
end  of  long,  tedious,  and  technical  trials.  The  loopholes 
through  which  hair-splitting  lawyers  may  lead  their  cli- 
ents to  freedom  are  innumerable.  The  extent  to  which 
veniremen  are  examined  before  accepted  as  jurors,  the 
badgering  of  witnesses,  and  the  shadows  of  legal  objec- 
tions that  are  permitted  to  stand  in  the  path  of  the  God- 
dess of  Justice  are  simply  appalling. 

In  spite  of  modern  theories  that  would  make  escape 
from  murder  even  easier  than  it  is  In  the  United  States 
today,  the  ancient  law  of  sacrifice  stands  as  the  only  safe 
and  sure  bulwark  of  our  liberties,  the  only  guarantee  of 
the  safety  of  human  life. 

Nothing  seems  more  Just  than  that  every  man's  hand 
should  be  lifted  against  the  calculating  murderer,  the  se- 
cret poisoner,  the  deliberate  and  watchful  paid  assassin. 
Yet  It  Is  now  quite  the  fashion  to  apologize  for  him,  to 
preach  of  the  sacredness  of  life  In  general,  to  coddle  and 
seek  to  reform  the  man  who  ruthlessly  commits  the  most 
revolting  of  crimes.     Why? 

SOME  APPALLING  CRIMES. 

Appalling  murders  have  become  so  frequent  by  reason 


134  BY  RIGHT  OF  SWORD 

of  the  non-enforcement  of  drastic  punishment  that  the 
most  calculating  and  inexcusable  of  criminals  figure  their 
chances  of  conviction  at  about  one  in  a  hundred,  with  the 
hope  of  pardon  if  convicted.  Diabolism  runs  rampant  to 
such  an  extent  that  we  expect  to  read  of  from  two  to  half 
a  dozen  revolting  crimes  every  time  we  pick  up  a  daily 
newspaper.  Observe  these  cases,  picked  at  random  in  the 
summer  of  1913,  in  California: 

A  Los  Angeles  husband,  weary  of  the  faithful  wife  who 
was  bravely  struggling  to  support  and  educate  her  daugh- 
ters, coaxed  her  to  some  foothills  adjacent  to  that  City, 
and  shot  her  to  death  in  order  that  he  might  be  free  to 
marry  another  woman.  His  victim  had  been  warned  of 
the  murderer's  intentions  and  had  notified  one  of  her 
daughters  not  to  let  the  father  escape,  in  the  event  that 
anything  should  befall  her. 

An  Oakland  man  deliberately  beat  his  wife  to  death, 
having  frequently  threatened  to  do  so.  He  bought  a  club 
for  the  purpose  and  provided  his  shoes  with  extra  heavy 
soles  in  order  that  his  kicks  might  be  more  deadly. 

A  fiend  ravished,  robbed  and  murdered  a  girl  in  Death 
Valley.  In  spite  of  the  tears  and  prayers  of  many  women 
who  desired  his  life  spared,  this  wretch  was  hanged. 

Organized  movements  of  men  and  women,  really  believ- 
ing that  they  are  benefactors  of  society,  are  busy  through- 
out the  United  States  in  an  effort  to  preserve  the  lives  of 
men  of  the  character  described  in  these  few  paragraphs. 
Meantime  the  laws  are  becoming  softer,  juries  are  losing 
their  courage,  and  convictions  followed  by  anything  like 
adequate  punishment  are  becoming  unusual. 

With  this  terrible  condition  confronting  us,  why  should 
we  refuse  to  profit  by  the  example  of  England  and  the 
object-lesson  of  her  comparative  freedom  from  the  more 
shocking  forms  of  human  slaughter?  Over  there,  the  rope 
and  conviction  are  inseparable.  The  time  is  ripe  for  a 
thorough  examination  of  the  entire  question  of  murder  and 
its  punishment. 

In  the  Annals  of  the  American  Academy,  May,  1907,  J. 
E.  Cutter  takes  the  position  that  the  abolition  of  capital- 
punishment  would  increase  lynchings  in  the  United  States. 
There  are  already  more  lynchings  than  legal  executions. 


A  DEFENSE  OF  CAPITAL-PUNISHMENT    135 

owing  to  the  failure  of  so  many  juries  to  live  up  to  the 
law,  because  of  technicalities,  and  the  general  failure  of 
the  courts. 

The  Reverend  Charles  Wiley,  D.D.,  in  the  American 
Presbyterian  Review,  July,  1871,  says:  "I  advocate  the 
practice  of  capital-punishment  on  the  broad  principle  that 
it  is  in  accordance  with  the  dictates  of  natural  justice." 

J.  M.  Buckley,  in  the  Forum  of  June,  1887,  maintains 
that,  in  the  New  Testament,  the  foundations  of  govern- 
ment are  discussed  in  the  Epistle  of  Paul  to  the  Romans, 
chapter  XIII,  Here  it  is  affirmed  that  the  Roman  Govern- 
ment derived  Its  right  from  God.  There  are  other  pas- 
sages equally  conclusive.  The  teachings  in  the  Sermon  on 
the  Mount  can  not  be  alleged  against  the  punishment  of 
crimes,  without  overthrowing  the  structure  of  all  govern- 
ment, as  Tolstoy  maintains  Christ  does.  That  Christ  did 
not  intend  to  overthrow  government,  says  Buckley,  is  clear 
from  many  references  to  law,  judges,  legal  punishments, 
taxes,  and  so  on.  In  Matthew  XXII,  19-21,  Is  the  famous 
passage  giving  unto  Caesar  the  things  that  are  his.  Some 
of  the  translations  make  this,  "Give  unto  the  ruler  that 
which  is  his,"  but  the  meaning  is  the  same.  It  is  possible. 
In  the  spirit  of  Christ,  to  convict  a  criminal.  "Any  use 
of  Christ's  words  which  would  make  them  incompatible 
with  the  Infliction  of  capital-punishment,"  says  Buckley, 
"provided  the  same  be  shown  to  be  necessary,  would  be 
equally  against  all  other  forms  of  legal  punishment.  So- 
ciety must  have  the  right  to  do  whatever  is  necessary  to 
maintain  itself.  •  •  *  Imprisonment  for  life,  with  the  pos- 
sibility of  escape  or  pardon.  Is  a  guaranteed  support  from 
which  many  of  the  criminal  classes  would  not  shrink; 
which  not  a  few  accept,  after  their  desperate  and  hope- 
less lives,  without  manifestation  of  grief  or  painful  appre- 
hension; and  which  the  majority  hail  with  joy  when  their 
fate  has  been  uncertain,  considering  it  an  Immense  relief 
from  the  death  penalty.  The  same  element  has  been  found 
to  be  of  great  importance  in  inducing  persons  to  turn 
state's  evidence.  •  •  •  [It  might  here  be  noted  that  the 
McNamara  confession  in  the  blowing  up  of  the  Los  An- 
geles Times  was  induced  by  the  fear  of  the  gallows  and 


136  BY  RIGHT  OF  SWORD 

the  promise  of  a  lighter  punishment  in  case  of  confession. 
EDITOR.] 

"Imprisonment  for  life  offers  a  premium  for  additional 
murder.  An  unrepentant  man,  sentenced  for  life,  is  not 
deterred  from  killing  a  guard."  If  such  a  man  kills  his 
keeper  and  makes  an  unsuccessful  dash  for  liberty,  he  is 
simply  where  he  was  before.  Murders  of  this  kind  have 
been  committed  in  cases  where  capital-punishment  is  pro- 
hibited. On  the  other  hand,  solitary  confinement  results 
in  death  or  insanity.  Co-operative  work  is  the  only  way 
to  prevent  insanity  or  early  death,  and  co-operative  work 
affords  opportunity  for  rebellion,  riot,  further  crimes  and 
escape.  Such  surroundings  inspire  desperate  criminals  to 
desperate  deeds,  as  in  many  of  the  noted  penitentiary  up- 
risings of  history. 

Again,  says  Buckley,  pardons  are  so  notoriously  easy  in 
the  United  States  that  the  subject  has  attracted  much 
unfavorable  comment  among  the  great  penologists  of  Eu- 
rope. 

Dr.  J.  T.  Edwards,  a  senator  (1870)  in  Rhode  Island, 
wrote  to  Mr.  Buckley  as  follows:  "Murder  has  dispropor- 
tionately increased  since  the  abolition  of  capital-punish- 
ment. We  neither  hang  nor  imprison  for  life  for  murder 
in  the  first  degree.  The  crimes  are  pardoned.  No  man 
'imprisoned  for  life'  has  ever  died  in  our  prison.  Justice 
is  tampered  with  under  our  systeuL."  The  Doctor  says  he 
spent  a  year  investigating  the  whole  subject  of  crimes, 
during  which  he  communicated  with  every  governor  in 
the  United  States. 

D.  Bethune  DuflBeld,  an  eminent  Detroit  lawyer,  reported 
that  death  or  insanity  comes  in  the  eighth  or  ninth  year 
of  solitary  imprisonment.  At  the  same  time  the  mayor 
of  Detroit  reported  that  there  was  a  general  feeling  that 
the  death  penalty  would  increase  the  security  of  life. 

Mr.  Buckley  also  heard  from  John  A.  Kennedy,  a  former 
eminent  superintendent  of  metropolitan  police,  New  York 
City.  For  many  years  the  Superintendent  was  strongly 
opposed  to  the  death  penalty,  but  his  wide  and  practical 
observations  and  direct  experiences  with  desperate  crim- 
inals caused  him  to  favor  the  ancient  sacrifice  of  life. 
After  giving  his  conclusions  in  detail,  he  ends  his  letter 


A  DEFENSE  OF  CAPITAL-PUNISHMENT    137 

thus:  "Should  the  Legislature  ever  abolish  capital-pun- 
ishment I  should  regard  the  vicinity  of  this  City  as  an 
unsafe  place  of  residence,  or  even  to  visit.  My  experiences 
have  convinced  me  that  the  abolition  of  the  gallows  would 
increase  murder."  Now  this  man  did  not  have  the  "pul- 
pit and  parlor  view  of  life"  after  he  had  finished  his  expe- 
riences with  the  human  butchers  for  whom  the  gallows 
was  primarily  intended. 

Mr.  Buckley  concludes  thus:  "What  is  essential  is  that 
the  penalty  for  premeditated  murder,  committed  without 
extenuating  circumstances,  shall  be  more  certain  and 
speedy,  and  that  it  shall  be  death." 

In  The  Month,  of  February,  1889,  W.  C.  Maude  holds 
that  there  is  absolutely  no  adequate  substitute  for  the 
death  penalty  in  cases  like  the  Whitechapel  murders.  He 
quotes  William  Tallack,  the  eminent  secretary  of  the  How- 
ard Association,  one  of  the  greatest  of  prison-reform  or- 
ganizations, as  favoring  the  death  penalty  In  extreme  cases. 
Tallack  contends  that  prisons  make  wild  beasts  of  men  to 
such  an  extent  that  a  solitary  prisoner  can  not  be  ap- 
proached by  one  man. 

Maude  contends  that  the  death  penalty  associates  the 
gravest  offense  with  the  highest  sacrifice.  As  the  Lord  Jus- 
tice said:  "You  can  never  separate  the  idea  of  right  and 
wrong  from  the  idea  of  punishment,  without  degrading 
the  latter  conception.  Punishment  is  a  part  of  justice  if 
it  is  anything  of  moral  worth." 

In  the  NaUon  of  March  20,  1873,  it  is  said  that  a  life 
sentence  has  no  advantage  over  the  death  penalty  on  the 
score  of  humanity.  If  the  criminal  can  be  made  to  be- 
lieve that  a  life  punishment  is  certain  to  be  for  life  (but 
life  penalties  are  not  in  fact  for  life)  it  would  be  terrible. 
Insanity  is  fifteen  times  more  prevalent  among  life  con- 
victs than  among  others.  Put  one  hundred  men  in  prison 
with  no  hope  that  they  may  ever  leave  its  gloomy  walls, 
and  take  away  all  hope  of  ameliorating  their  surround- 
ings, and  not  one  would  be  left  alive  in  fifteen  years.  Such 
a  life  imprisonment  would  be  the  substitution  of  death  by 
slow  torture  for  death  at  one  stroke.  The  good  Quakers 
had  the  solitary  imprisonment  idea,  but  it  has  been  aban- 
doned by  reason  of  its  unspeakable  cruelties. 


138  BY  RIGHT  OF  SWORD 

DEATH  THE  KING  OF  TERRORS. 

In  the  New  Review  of  August,  1894,  W.  S,  Lilly  main- 
tains that  death  is  still  the  king  of  terrors,  the  deterrent 
power  par  excellent.  He  also  quotes  Tallack  to  the  effect 
that  the  death  penalty  may  be  a  merciful  one  compared 
with  the  prolonged  injury  inflicted  on  the  spiritual  and 
mental  powers  by  means  of  the  hopeless  misery  of  the  sol- 
itary cell,  on  the  one  hand,  or  by  the  corruptions  of  filthy 
and  blaspheming  convict  gangs  on  the  other.  Tallack's 
long  and  intimate  knowledge  of  English  prisons  make  his 
words  peculiarly  impressive.  The  Italians,  in  their  hatred 
of  capital-punishment,  have  substituted  another  and  a 
worse  form  of  killing  the  convict. 

"But  we  do  not  advocate  placing  cold-blooded  murderers 
in  such  prisons,"  the  reformer  will  say. 

"Pray,  then,"  might  be  asked,  "what  kind  of  prison 
would  you  place  them  in"? 

In  the  co-operative  or  congregate  system,  as  already 
shown,  there  is  grave  danger  of  escape.  There  is  dan- 
ger to  the  associates  of  these  wild  beasts,  whether  those 
associates  be  guards  or  fellow-prisoners.  It  is  an  injus- 
tice to  the  ordinary  prisoner  to  expose  his  life  to  the  as- 
saults of  these  inhuman  wretches. 

In  the  North  American  Review  of  December,  1881, 
Samuel  Hand  shows  that  the  barbarous  Frank,  Saxon,  and 
Goth  valued  human  life  in  dollars.  A  murder  was  re- 
deemed by  a  fine,  the  schedule  of  prices  being  regulated 
by  the  standing  of  the  victim  and  his  family.  The  civil- 
ized Englishman,  Frenchman,  Italian,  and  Spaniard  pun- 
ishment of  death  is  unquestionably  the  most  powerful  de- 
terrent, the  most  efiicient  preventive  that  can  be  applied 
to  the  case.  Those  who  believe  the  Bible  cannot  escape 
from  the  conclusion  that  the  death  penalty,  unlike  other 
penalties,  was  not  local,  not  a  code  for  the  Jews,  but  was 
for  all  time — a  compact  with  the  new  father  of  the  human 
race,  Noah.  And  something  should  be  credited  to  the 
usage  of  all  civilized  peoples.  An  instinct  that  outruns 
all  reasoning,  a  dreadful  horror  that  overcomes  all  other 
sentiments,  works  in  us  all  when  we  contemplate  being 
taken  out  and  hanged  by  the  neck  until  dead,  or  being 


A  DEFENSE  OF  CAPITAL-PUNISHMENT    139 

shot,  or  placed  in  the  electric  chair.  Was  Shakespeare 
wrong  in  portraying  death  as  the  king  of  terrors?  Hear 
the  immortal  Bard: 

The   wearied   and   most   loathed    worldly   Ufa 

That    a^e,    ache,    penury    and    ImprUwnment 

Can  lay  on  nature,  is  a  paradlae 

To  what   we   (ear  of  death. 

Much  the  more,  then,  would  the  modem  prison  sug- 
gested by  so-called  reformers,  be  a  paradise  for  the  mur- 
derer of  his  neighbor. 

The  Reverend  E.  B.  McGllvary,  Sage  Professor  of  Moral 
Philosophy  at  Cornell  University  argues  for  the  death  pen- 
alty. In  the  Review  of  Reviews  for  May,  1900,  he  says 
that  the  gallows  "is  the  calm,  cool,  relentless  expression 
in  outer  act  of  the  fuller,  completer  social  life  against  the 
narrower,  passionate  self  which  in  the  act  of  offense  tries 
to  assert  its  independence."  See  also  Philosophical  Re- 
view for  March,  1900.  He  shows  that  the  gallows  reforms 
the  murderer  (often)  before  he  is  hanged.  He  comes  to 
himself  In  prospect  of  the  gallows,  recognizes  the  enor- 
mity of  his  offense  to  himself  and  to  society,  and  is  recon- 
ciled. Note  that  here  is  a  professor  of  moral  philosophy 
vndeterred  by  being  called  a  relic  of  past  ages. 

THE  GALLOWS  DEFENDED. 

In  the  Westminster  Review  of  July,  1908,  C.  J.  Ingram 
has  an  excellent  defense  of  the  gallows.  He  argues  that 
the  frequent  and  certain  use  of  the  gallows  in  England 
has  proved  a  deterrent  to  the  crime  of  murder.  The  man 
on  the  street,  in  England,  knows  that  the  crime  of  mur- 
der, almost  always  punished  by  the  death  penalty,  is  not 
the  murder  of  extreme  passion,  emotion,  etc.,  but  the  cold- 
blooded type  is  in  mind.  Heartless  cases  of  hired  assassina- 
tion, secret  poisoning  and  other  deliberate  classes  of  mur- 
der are  deterred  by  the  fear  of  the  gallows,  he  argues. 

In  France  there  was  a  marvelous  increase  of  brutal  mur- 
ders from  1828  to  1884.  The  increase  was  from  197  to 
234  per  annum.  The  badge  of  the  reformatory  and  so- 
called  humane  school,  believers  in  reformation,  was  most 
in  vogue  during  this  era.  From  1886,  under  the  more 
severe  treatment  of  murder,  that  crime  decreased.  In 
Italy  crime  greatly  increased  (horrible  murders)  under  a 


140  BY  RIGHT  OF  SWORD 

rule  of  soft  treatment.  From  1860  till  1870  there  was 
an  increase  of  22  per  cent  in  crimes  punishable  by  death. 
From  1860  to  1870,  the  same  period,  there  was  an  increase 
of  64  per  cent  in  crimes  punishable  by  life  imprisoninent: 
From  1881  to  1890  there  was  a  marked  decrease  of  mur- 
ders. The  death  penalty  was  feared  and  it  deterred  the 
hand  of  the  murderers.  See  what  happened  after  1890, 
the  year  in  which  the  death  penalty  was  abolished.  Mur- 
ders averaged  4,000.  This  was  a  marked  increase.  Un- 
der lenity  other  crimes  also  increased,  so  that  the  total 
increase  in  crimes,  murder  and  all  the  others  included, 
was  200  criminals  per  100,000  population.  Crime  also 
increased  in  Austria.  So  everywhere  in  the  larger  Conti- 
nental countries,  statistics,  under  lenity,  show  a  remark- 
able increase  in  crimes. 

But  in  Great  Britain,  under  the  hangman's  rule,  we  find 
a  great  decrease  in  murder.  Garofalo,  the  eminent  Italian 
theorist,  says:  "It  is  only  in  England  that  crime  shows 
a  general  tendency  to  decrease  in  its  gravest  forms,  looked 
at  over  a  period  of  several  years.  Murder  has  become  ex- 
ceedingly rare." 

Mr.  Ingram,  an  English  advocate,  continues:  "If  crim- 
inal statistics  show  anything,  surely  the  coincidence  of 
the  rise  and  fall  of  crime  is  in  harmony  with  the  strin- 
gency or  the  reverse  of  the  'sanction'  with  which  they  are 
menaced,  is  remarkable.  If  it  is  legitimate  to  maintain 
a  logical  connection  between  them,  we  may  infer  that  the 
casuality  of  capital-punishment  divides  itself  into  two  chan- 
nels. First,  it  does  directly  deter  those  tempted  to  com- 
mit the  actual  crime  of  murder;  and  secondly,  indirectly, 
its  existence  permeates  through  society  and  diminishes 
crime." 

Mr.  Ingram  argues  that  the  extreme  rarity  of  cases  of 
robbery,  burglary,  etc.,  consummated  with  murder  (in  Eng- 
land), in  comparison  with  other  countries,  "should  be  char- 
acterized as  the  direct  outcome  of  the  judicial  severity  of 
the  law.  Such  crimes  are  almost  invariably  committed  by 
the  professional  criminal,  the  recidivist,"  and  the  sever- 
ity and  certainty  of  the  English  law  deter  even  this  class 
of  men  from  attempting  their  crimes. 

Sir  Robert  Hunter,  Judge  Wills  and  other  eminent  pen- 


A  DEFENSE  OF  CAPITAL-PUNISHMENT    141 

ologists,  turning  In  revulsion  and  almost  contempt  from 
the  reformatory  ideas  of  the  sentimentalists,  are  for  the 
noose.  They  tested  the  investigations  of  Lombroso,  Ferri 
and  other  theorists,  says  Mr.  Ingram,  and  rejected  their 
conclusions  as  to  an  anthropological  criminal  type  as  un- 
sound. The  theorists  broke  down  in  the  presence  of  the 
criminal  beyond  reformation.  If  he  were  incorrigible,  they 
had  no  solution  to  offer  of  his  case. 

"The  latest  school  of  penologists,"  continues  Ingram, 
"going  on  where  the  reformers  left  off,  and  accepting  the 
fact  of  impossibility  of  reformation,  lay  down  the  rule  that 
crime  must  be  grappled  with,  if  not  by  the  education  sub- 
jectively of  the  criminal,  yet  if  necessary  at  his  expense, 
and  for  the  benefit  of  the  public.  So  the  logical  end  of 
their  creed  is  elimination,  the  natural  evolutionary  process 
by  which  those  unfitted  or  incapable  of  adapting  them- 
selves to  their  environment  must  drop  out." 

The  welfare  of  the  law-abiding  public  is  not  to  be  sac- 
rificed to  the  interest  of  the  individual  criminal.  "With 
regard  to  the  possibility  of  reformation,  the  world-wide 
results  of  the  vogue  of  the  reformatory  theory  show  that, 
acting  on  the  class  of  the  more  serious  criminals,  that  the- 
ory has  proved  itself  a  failure.  The  recidivist  has  every- 
where grown  in  numbers.  In  Austria  the  number  of  recon- 
victed prisoners  to  total  conviction  amounted  to  forty-five 
per  cent.  In  France  the  percentage  was  46.  Belgium  held 
forty-nine  per  cent  of  recidivists,  while  Italy  has  fifty-five." 

It  Is  shown  that  the  humane  and  most  mild  methods  of 
Sweden,  where  capital-punishment  is  almost  unknown,  are 
a  failure,  since  the  reconvicted  class  amounts  to  seventy- 
five  per  cent.  In  conclusion,  Mr.  Ingram  says:  "The  lat- 
est school  to  carry  its  theory  to  its  conclusions,  demands 
elimination,  and  the  isolation  of  the  criminal  from  society. 
It  aims  not  at  vindictive  punishment,  nor  so  much  to  ac- 
complish its  object  by  deterrence,  as  prevention  through 
a  denial  of  fresh  opportunities  of  misconduct.  Its  action 
is  thorough.  It  clears  out  the  criminal  growth,  root  and 
branch.     No  seed  from  It  can  be  afterwards  propagated. 

"Such  elimination,  where  human  life,  present  or  future, 
is  at  stake,  can  only  be  accomplished  by  perpetual  impris- 
ooment  or  death.**     Is  one  any  more  humane  than  the 


142  BY  RIGHT  OF  SWORD 

other?     Is  not  death  the  more  merciful,  If  the  prison  in 
question  be  made  as  it  should  be,  safe  and  isolated? 

Monsieur  Prins,  of  Belgium,  who  has  had  wide  experi- 
ence with  penal  institutions  and  the  science  of  penology, 
says:  "To  hope  that  the  vicious,  hardened  offender,  after 
a  long  detention,  surrounded  with  every  attention,  and 
soaked  with  good  counsel,  will  leave  his  cell  regenerated, 
is  simply  a  Utopian  dream." 

A  DECREASE   OP  MURDERS. 

One  interested  in  the  study  of  crime  notes  with  satis- 
faction that  there  has  been  a  marked  decrease  of  offenses 
against  the  law  during  a  long  period  of  recorded  observa- 
tions in  the  United  Kingdom.  It  is  known  of  all  men  that 
the  British  laws  are  more  strictly  enforced  than  those  of 
any  other  English-speaking  country — more  strictly  than 
in  most  of  the  foreign  lands  of  the  globe. 

Whitaker's  Almanack  (1913)  gives  an  interesting  table, 
from  which  it  is  noted  that  there  has  been  a  steady  de- 
crease In  the  number  of  convictions  between  1850  and 
1911,  notwithstanding  the  increase  in  population.  In  1850 
the  population  of  England  and  Wales  was  a  trifle  more 
than  seventeen  million  and  three  quarters.  The  convic- 
tions that  year  were  20,537.  With  a  population  exceed- 
ing thirty-six  and  a  tenth  millions  in  1911  there  were  only 
11,338  convictions.  In  1850  the  population  of  Scotland 
was  almost  two  and  nine-tenths  of  a  million.  The  convic- 
tions were  3,363.  In  1911,  with  a  population  of  almost 
four  and  three  quarter  millions  there  were  only  1,122  con- 
victions. In  1850  the  population  of  Ireland  was  almost 
seven  millions.  There  were  that  year  17,108  convictions. 
In  1911  the  population  had  decreased  to  a  figure  slightly 
above  four  and  a  third  millions.  There  were  only  1,496 
convictions. 

These  figures  sustain  the  contention  of  Advocate  In- 
gram, quoted  elsewhere  in  these  pages,  to  the  effect  that 
the  death  penalty  has  a  tendency  to  keep  down  all  other 
crime,  when  it  ia  strictly  enforced  for  murder  and  when 
other  laws  are  promptly  administered. 

Figures  for  each  year  between  1850  and  1911  are  given 
by    Whitaker.      A   steady    decrease    of    convictions,    with 


A  DEFENSE  OF  CAPITAL-PUNISHMENT     143 

slight  aberrations  here  and  there,  is  seen  in  face  of  in- 
creasing population,  except  in  the  case  of  Ireland,  as  shown 
above. 

The  editor  of  Blackwood's  Magazine  (Edinburgh)  of  the 
issue  of  January,  1911,  has  an  interesting  discussion  of 
the  Crippen  murder  case  in  conjunction  with  the  foes  of 
capital-punishment.  He  maintains  that  the  death  penalty 
is  in  accord  with  Christian  ethics  and  the  immemorial 
right  of  society  to  defend  and  protect  itself.  His  comment 
was  drawn  forth  by  the  perusal  of  a  sentimental  writer's 
protest  against  the  horror  of  hanging  the  notorious  Amer- 
ican wife  murderer.  The  editor  says:  "After  a  peculiarly 
brutal  and  skilfull  murder  is  committed  we  must  read  in 
journals  piteous  wails  of  remonstrance  because  he  who 
committed  it  is  asked  to  pay  the  proper  penalty  for  his 
crime.  If  we  are  going  through  the  world  thus  fearing 
death  for  ourselves  and  others,  there  is  an  end  not  only 
of  our  National  ascendancy  but  of  our  National  existence." 

The  editor  says  that  such  softness  would  destroy  the 
manhood  of  England,  and  he  feels  that  the  movement  to 
abolish  the  gallows  "is  a  conspiracy  of  deception  which 
suggests  that  the  best  ideal  of  life  is  a  pampered  criminal 
class,  jails  like  palaces,  and  the  wrong-doer  unpunished. 
*  •  What  remains  for  the  man  who  serves  his  country  with 
courage  and  devotion  but  shame,  and  for  the  fiend  who 
murders  his  wife  In  cold  blood  the  sympathy  of  'kind  Eng- 
lish hearts'  and  a  tomb  in  Westminster  Abbey"! 

The  editor  maintains  that  there  is  far  too  much  un- 
wholesome sentimentality  which,  if  it  does  credit  to  the 
heart,  does  not  to  the  head.  Men  die  every  hour  In  the 
path  of  duty,  repelling  domestic  foes,  advancing  the  build- 
ing of  cities  and  the  cause  of  civilization— die  nobly  in 
the  path  of  duty  without  evoking  an  outburst  of  sym- 
pathy, yet  Doctor  Crippen,  the  murderer,  "is  chased  across 
the  Atlantic,  is  brought  back  to  England  with  pomp  and 
circumstance,  is  defended  in  accordance  with  the  best  tradi- 
tions of  the  Old  Bailey,  and  appears  to  the  indiscreet  read- 
ers of  the  newspapers  a  suffering  hero." 

LOMBROSO  DISCUSSED. 

The  Reverend  Father  William  Barry  has  made  a  search- 


144  BY  RIGHT  OF  SWORD 

Ing  analysis  of  the  Lombrosoan  theory  of  crime  and  mor- 
als. This  eminent  Catholic  metaphysician  and  author,  who 
was  for  many  years  professor  of  philosophy  at  the  Bir- 
mingham Theological  College,  was  trained  under  the  tute- 
lage of  the  illustrious  Perrone,  at  Rome.  Though  his  re- 
view of  Lombroso's  ponderous  volumes  is  based  on  logic 
rather  than  on  any  theological  deductions,  he  incidentally 
makes  it  plain  that  the  Catholic  Church  approves  of  cap- 
ital-punishment. 

His  illuminating  articles  appear  in  the  Ecclesiastical  Re- 
view, New  York,  of  August,  September  and  October,  1897. 
The  learned  father  first  shows  that  Lombroso  rejoiced  in 
calling  himself  a  revolutionist,  an  enemy  of  theology  and 
religion,  and  a  Positivist  in  philosophy.  He  shows  that 
to  Lombroso  the  criminal  is  a  species  of  his  own — a  class 
which  has  its  characteristic  marks,  physical,  mental,  moral 
and  social.  He  submits  that  the  line  of  demarkation  is 
not  so  sharp  as  Lombroso  has  shown.  George  Eliot  de- 
scribed Titus  Gates  with  the  face  of  an  angel,  while  Ma- 
caulay  paints  him  as  a  human  baboon,  with  monstrous  fea- 
tures. Lombroso  is  correct  in  part,  in  ascribing  deter- 
minism or  fate  to  some  types,  but  he  goes  too  far.  He 
submits  Edmund's  speech  in  King  Lear  as  a  fair  summary 
of  the  conclusions  of  the  modern  reformers  now  in  evi- 
dence: 

Is  it  not  "the  excellent  foppery  of  the  world  which 
makes  guilty  of  our  disasters  the  sun,  the  moon,  and  stars, 
as  if  we  were  villains  on  necessity;  fools  of  heavenly  com- 
pulsion; knaves,  thieves  and  treachers  by  spherical  pre- 
dominance; drunkards,  liars  and  adulterers,  by  an  enforced 
obedience  of  planetary  influence;  and  all  that  we  are  in 
evil  by  a  divine  thrusting  on"? 

Like  Taine,  Lombroso  abolishes  free-will,  rejects  the 
conception  that  the  individual  has  any  power  to  choose 
a  course  of  virtue  or  vice,  crime  or  folly.  He  is  an  auto- 
maton, a  mere  machine  moved  by  secret  springs  which  he 
can  not  control.  This  description  is  said  to  fit  the  crim- 
inal type;  yet  even  Lombroso,  like  Taine,  would  extermi- 
nate the  worst  of  these.  On  page  137  of  the  August  num- 
ber of  the  Review,  Father  Barry  says:  "The  elder  crim- 
inal  should,   perhaps,   in   extreme   cases,   be   eliminated." 


A  DEFENSE  OF  CAPITAL-PUNISHMENT    145 

The  quotation  is  his  summary  of  Lombroso's  preface  to 
L'Uomo  Delinquente. 

The  prelate  contends  that  there  is  an  indeterminate  twi- 
light region  between  responsibility  and  irresponsibility. 
Doctors,  priests,  and  attendants  on  the  sick  know  that 
self-control  and  freedom  of  the  will  are  liable  to  endless 
modifications.  The  average  man,  when  not  insane  or  un- 
der the  delirium  of  drugs  or  fever,  must  be  held  morally 
accountable  for  his  deeds. 

It  is  shown  that  England,  with  the  death  penalty  strictly 
enforced  for  murder,  has  a  low  crime  record.  Some  of 
the  figures  are  interesting,  covering  a  series  of  years.  The 
following  results  of  observations  throughout  a  series  of 
years  show  homicides  as  follows  to  the  million  of  popula- 
tion: Great  Britain,  5  to  8;  France,  14  to  17;  Austria, 
23  to  26;  Spain,  74  to  77;  Italy,  95  to  98;  the  Tuscany 
District,  120  to  200;  Corsica,  200;  in  the  United  States, 
about  78. 

It  is  shown  that  conviction  for  homicide  is  swift  and 
certain  in  England,  the  punishment  being  death  only,  for 
murder.  In  Italy  both  courts  and  juries  are  so  passion- 
ate, 80  corrupt  and  so  biased  that  it  is  exceedingly  diificult 
to  obtain  punishment  for  murder.  In  Italy,  furthermore, 
the  homicidal  recidivist  (backslider)  commits  the  second 
and  third  offense  on  receiving  his  discharge.  Relapse  in 
the  case  of  all  types  of  criminals  is  the  rule  everywhere. 

But  Lombroso  would  abolish  short  sentences  and  par- 
dons for  all  types  of  degenerates.  Barry  concludes  thus: 
"Lombroso  sins  by  exclusive  and  exaggerated  statements; 
by  Ignorance  of  metaphysics,  religion  and  history;  by  pre- 
mature induction." 

Too  many  thieves,  idlers,  liars,  cowards,  cheats,  knaves, 
passionate  and  improvident  wretches  are  being  coddled. 
They  are  multiplying  under  a  doctrine  of  lenity.  The 
Jukes  family  had  charged  against  it  540  legitimate  and 
170  known  illegitimate  thieves,  murderers  and  fallen 
women.  What  a  protection  it  would  have  been  to  society 
to  have  sterilized  the  original  sinners! 

Carlyle's  essay  The  New  Model  Prison,  is  quoted  to  show 
conditions  at  Millbank.  The  great  Scotsman  describes  the 
inmates  as  "miserable,   distorted  blockheads,   sons  of  in- 


146  BY  RIGHT  OF  SWORD 

docility  and  mutinous  darkness."  He  concludes  that  to 
reclaim  tliem  by  tlie  method  of  love  is  "hopeless  with  the 
tread-wheel  abolished.  These  abject,  ape,  wolf,  ox,  imp 
and  other  diabolic  criminal  specimens  of  humanity — who 
of  the  very  gods  could  have  commanded  them  by  love? 
A  collar  around  the  neck  and  a  cart-whip  flourished  over 
the  back;  these,  in  a  just  and  steady  hand,  were  what  the 
gods  would  have  appointed  them." 

The  truth  lies  somewhere  between  Carlyle's  austere  view 
and  the  sentimentalism  of  Hugo. 

It  is  shown  that  crime  increases  five  times  faster  than 
population  in  Italy,  though  that  country  has  a  high  birth 
rate.  In  France  crime  increased  133  per  cent  during  the 
half  century  ending  in  1889.  England  showed  a  very 
slight  increase  of  some  classes  of  crimes.  Insanity  is  also 
increasing  in  all  of  the  civilized  lands  of  the  globe.  Born 
delinquents  throng  the  great  cities.  Education  has  not 
lessened  crime.  Lombroso  admits  that  even  the  best  pos- 
sible prisons  are  hotbeds  of  crime.  For  once  a  Catholic 
author  is  in  accord  with  Herbert  Spencer,  which  fact  is 
gratefully  acknowledged.  In  his  Study  of  Sociology,  pages 
358  to  363,  Spencer  proves  that  intellectual  education  has 
failed  to  reduce  crime.  He  says  fraudulent  bankrupts  and 
secret  poisoners  are  often  found  among  the  highly  edu- 
cated. Spencer  says:  "The  bettering  of  conduct  can  be 
effected,  not  by  insisting  on  maxims  of  good  conduct,  still 
less  by  mere  intellectual  culture,  but  only  by  that  daily 
exercise  of  the  higher  sentiments  and  repression  of  the 
lower,  which  results  from  keeping  men  subordinate  to  the 
requirements  of  orderly  social  life — ^letting  them  suffer 
the  inevitable  penalties  of  breaking  these  requirements 
and  reap  the  benefits  of  conforming  to  them.  This  alone 
is  rational  education."     Study  of  Sociology,  373. 

Ferrero  agrees  with  Spencer  and  shows  that  Taine  and 
Lombroso  had  the  same  convictions.  The  word  decadence, 
not  civilization,  expresses  the  condition  of  Latin  and  French 
countries,  according  to  Lombroso.  On  page  383  of  the 
October  number  of  the  Review  it  is  shown  that  Lombroso 
concludes  that  prisons  are  hot-beds  of  crime  and  chief 
sources  of  relapse.  The  scandals  of  the  Italian  jury  sys- 
tem are  appalling,  for  ignorance,  bribery  and  lawlessness 


A  DEFENSE  OF  CAPITAL-PUNISHMENT    147 

prevail.  There  are  infinite  abuses  of  appeals  and  pardons. 
Immunity  and  crime  go  hand  and  hand,  with  immunity 
granted  by  jurymen,  judges  and  the  monarch  to  persona 
who  have  shamelessly  confessed  their  brutal  delinquencies 
in  open  court.  No  wonder  murder  is  rampant  in  such  a 
country.  On  page  389  it  is  shown  that  Lombroso,  like 
Taine,  would  retain  the  punishment  of  death  in  extreme 
cases.  Lombroso  approvingly,  though  with  some  reluc- 
tancy,  quotes  Taine  thus:  "If  you  have  human  orang- 
outangs, lustful  and  ferocious,"  who  "rob,  violate  and  kill 
by  course  of  nature,  prove  them  to  be  such  and|  I  make 
no  objection  to  the  penalty,  of  death." 

Elsewhere,  oddly,  Lombroso  would  give  every  man  a 
chance  to  commit  one  murder,  and  would  hang  him  for 
the  second;  for  he  says  the  death  penalty  should  probably 
be  reserved  for  the  recidivist.  He  favors  penal  servitude 
for  life  in  most  cases,  as  in  Belgium,  with  no  hope  of  par- 
don. The  Belgian  "closed  state"  of  Mexplas  is  now  (1897) 
the  home  of  about  five  thousand  dangerous,  undisciplined 
and  ill-famed  human  fiends. 

Lombroso,  like  Garofalo,  would  treat  crime  somewhat 
as  follows:  1.  Absolute  elimination  (the  penalty  of 
death)  for  the  hopeless  murderer.  2.  Relative  elimina- 
tion, in  the  form  of  an  asylum,  banishment  to  a  criminal 
colony,  or  local  exile.  3.  Reparation  of  the  injury,  where 
possible,  as  fines  paid  to  the  state  or  the  injured  person, 
as  under  an  old  English  law.  4.  A  fixed,  never  an  indeter- 
minate, term  of  imprisonment. 

Father  Barry  concludes  that,  in  spite  of  many  gross  er- 
rors and  untenable  theories,  Lombroso  shows  the  best  way 
to  handle  the  waste  products  now  heaped  up  In  our  cities. 

SOME  RECIDIVIST  EXAMPLES. 

In  Harper's  Weekly  of  July  3,  1909,  Edward  C,  Spitzka, 
M.D.,  discusses  the  case  of  capital-punishment  in  part  as 
follows: 

We,  who  are  defenders  of  that  tragic  measure,  the  death 
penalty,  are  sustained  by  the  conviction  that  the  prejudice 
which  our  opponents  entertain  against  the  execution  of  the 
criminal  will  eventually  give  place  to  sympathy  for  the  victim. 

The  day  which  will  witness   tb«   realization  of  this   belief 


148  BY  RIGHT  OF  SWORD 

seems  about  to  dawn.  At  least,  events  calculated  to  accelerate 
its  advent  have  already  transpired.  There  are  a  number  of 
cases  on  record  of  men  who,  after  serving  a  sentence  for  felo- 
nious murder  and  being  released,  have  committed  a  second 
murder  of  the  same  character.  Last  year  M.  I>elyanni,  the 
Prime  Minister  of  Greece,  was  about  to  step  into  his  carriage 
outside  the  Parliament  House  when  a  man  named  Gherakaris, 
who  had  come  forward  to  open  the  door,  turned  upon  him  and 
murdered  him.  This  murderer  had  recently  been  discharged 
from  jail,  where  he  had  served  a  sentence  for  the  murder  of 
his  wife.  The  motive  of  the  crime  reveals  the  reformative 
efficacy  of  imprisonment  to  be  of  a  rather  questionable  kind. 
The  victim  had  undertaken  to  abolish  gambling  houses  in  Ath- 
ens. The  murderer  was  a  professional  gambler,  and  resented 
this,  being  additionally  stimulated  by  others  of  the  same  pro- 
fession. Auxiliary  motives  of  a  financial  nature  were  sus- 
pected. 

A  second  case  of  this  nature  occurred  thirteen  years  ago  in 
Leghorn,  where  the  editorial  writer  Bandi  was  stabbed  to 
death  by  a  certain  Lucchesi,  whose  skill  in  the  science  of  assas- 
sination need  have  caused  no  surprise,  since  he  had  already 
served  his  apprenticeship  in  jail  for  a  previous  crime  of  the 
same  character.  On  the  occasion  of  his  previous  trial  his 
counsel  had  pleaded  the  Lombroso  degeneracy  doctrine,  where- 
upon Bandi  wrote  an  editorial  denouncing  this  procedure,  and 
ridiculing  the  doctrine.  The  article  was  so  convincing  that 
the  Public  Prosecutor  waived  the  ordinary  summing  up  and, 
in  place  of  it,  read  Bandi's  words  to  the  jury,  who  promptly 
convicted  Lucchesi.  During  his  term  in  jail  the  murderer  nour- 
ished a  fierce  hatred  against  the  man  whom  he  regarded  as  the 
cause  of  his  condition,  and  as  soon  as  he  was  released  he  mur- 
dered him. 

Had  capital-punishment  prevailed  the  lives  of  Bandi  and 
the  Greek  Premier  would  have  been  spared  at  the  expense  of 
those  of  the  assassins.  Those  who  preserved  the  latter,  to  the 
sacrifice  of  the  former,  by  the  abolition  or  disuse  of  the  death 
penalty,  are  accessory  to  the  wanton  murder  of  useful  and 
eminent  citizens.  The  principle  responsible  for  such  a  para- 
dox and  travesty  of  justice  may  call  itself  humanitarianism, 
but  from  genuine  humanity  it  is  as  far  removed  as  anti- 
vivisection  is  from  science,  safety  and  common  sense.  The 
breeder  of  rattlesnakes  may  be  regarded  as  an  enthusiastic 
herpetologist,  but,  should  be  liberate  his  dangerous  pets  in 
the  midst  of  an  assemblage  of  his  own  kind,  he  would  be 
looked  upon  as  anything  but  a  philanthropist. 

Of  thirty-two  plots  against  the  lives  of  European  Sov- 
ereigns since  1894,  twenty-five  occurred  in  territories  within 
which  the  crime  of  murder  is  punishable  by  death,  and  seven 
in  territories  in  which  capital-punishment  has  been  abolished. 
Taking  into  consideration  the  larger  group,  only  five,  or  one- 
fifth  of  the  total  number  of  plots,  resulted  in  attacks,  bombs 
were   the   only   weapons   used,   and   none   was    successful.      In 


A  DEFENSE  OP  CAPITAL-PUNISHMENT    149 

the  smaller  group,  of  the  seven  plots  six  resulted  in  attacks, 
and  two  succeeded.  Knives  and  revolvers  were  used  exclu- 
sively. The  fact  that  bombs  alone  were  used  by  those  con- 
spiring in  the  shadow  of  the  scaffold  is  in  direct  conflict  with 
the  "scaffold  martyr"  theory,  according  to  which  the  prospect 
of  a  glorious  death  would  act  as  an  encouragement  to  the 
assassins.  Their  conduct  rather  resembles  that  of  a  flight 
of  crows,  sighting  the  cadaver  of  a  fellow  crow,  nailed  to 
some  barn  roof  as  a  warning  to  other  depredators.  In  thir- 
teen plots  of  this  group  the  conspirators  concealed  their  iden- 
tity under  an  incognito  which  has  never  been  disturbed,  while 
others  transferred  their  place  of  action  to  some  jurisdiction 
where  the  conditions  were  more  favorable  to  longevity. 

If  the  twenty-five  members  of  the  larger  group  had  se- 
lected the  same  weapons  as  the  seven  members  of  the  smaller 
group,  and  had  used  them  with  the  same  determination,  there 
would  have  been  some  twenty  attacks  instead  of  fiVe,  and  six 
or  seven  cases  of  regicide.  The  failures  were  due  to  the 
pusillanimity  of  the  would-be  murderers  in  selecting  bombs 
instead  of  the  knife  and  revolver.  The  impression  received  is 
that,  if  the  prospect  of  mounting  the  scaffold  acted  as  a  fas- 
cination, it  was  In  a  singularly  perverse  way.  Whatever  the 
influence  excited  by  the  scaffold,  it  did  not  act  on  those  it 
seduced  as  an  efllcient  stimulus  to  action. 

Inasmuch  as  statistics  show  a  certain  constancy  of  results 
achieved  by  similar  weapons  in  the  hands  of  those  of  the 
same  race  and  employed  under  corresponding  conditions,  it 
may  be  surmised  what  would  have  been  the  result  had  the 
twenty-five  members  of  the  larger  group  selected  the  same 
weapons,  and  used  them  with  the  same  determination  as  their 
seven  contemporaries.  But  their  dread  of  the  scaffold,  which 
predominated  over  every  other  emotion,  coerced  then\  to  the 
adoption  of  instruments  and  a  procedure  that  made  failure 
almost  inevitable.  In  short,  the  fact  that  only  fiascos,  abor- 
tive attempts,  and  still-born  projects  provocative  of  derision 
occurred,  in  place  of  some  twenty  attacks  and  half  a  dozen 
regicidal  tragedies,  is  to  be  credited  to  one  circumstance  alone 
— the  fear  of  a  felon's  death. 

The  failure  of  a  quarter  of  a  hundred  plots  may,  there- 
fore, be  fairly  attributed  to  the  efficient  co-operation  of  capi- 
tal punishment  in  deterring  the  contemplator  and  paralyzing 
the  perpetrator  of  regicide. 

For  a  long  time  the  advocates  of  capital-punishment  were 
in  the  predicament  of  being  unable  to  meet  the  posiUve  evi- 
dence brought  forward  by  their  opponents  as  to  the  failure 
of  the  death  penalty  to  effect  Its  deterrent  purpose.  The  abo- 
lition of  capital-punishment  In  certain  states  and  the  statis- 
tics of  murders  have  supplied  us  with  the  proofs  we  required. 

Not  once  has  It  happened  that  the  ruler  of  a  country  In 
which  capital-punishment  has  been  abolished  was  attacked  in 
a  land  where  It  la  still  In  force.     The  contrary,  however,  haa 


150  BY  RIGHT  OF  SWORD 

happened  twice — once  with  fatal  results.  That  was  when  an 
Italian  traveled  to  a  Swiss  canton  in  which  the  death  pen- 
alty had  been  abrogated,  to  kill  the  Empress  of  Austria.  In 
the  other  case  an  Italian  named  Sipido  traveled  from  France 
to  Belgium,  where  the  death  penalty  has  been  abandoned  for 
half  a  century,  in  order  to  assassinate  King  Edward  VII,  then 
Prince  of  Wales. 

The  total  number  of  regicidal  plots  involving  the  employ- 
ment of  explosives  recorded  since  1795  is  sixty,  of  which  thirty- 
five  matured  as  far  as  the  incipient  attempt.  Only  twenty- 
three  were  actually  carried  out,  and  success  was  achieved  in 
only  two  instances,  both  limited  to  Russia. 


Disastrous  Results  of  Unwise  Laws 

N    Tennessee,    Arizona,    Oregon,    California,    and    some    other 

states  there  are  sensational  newspapers  that  denounce  every 
hanging  as  legal  murder.  By  "playing  up"  the  law's  sternest 
punishment  and  denouncing  every  enforcement  of  the  death 
penalty  as  barbarous,  they  have  built  up  a  strong  clientele  of 
readers. 

In  striking  and  sober  contrast  to  this  ill-advised  and  wholly 
unwarranted  violence  there  are  a  few  editors  and  influences 
that  stoutly  maintain  the  righteousness  of  the  existing  order, 
and  only  regret  that  capital-pnnl«lunent  Is  so  Infrequently  In- 
flicted in  cases  of  cold-blooded,  premeditated  murder.  The 
antagonists  of  the  existing  system  seek  to  put  it  on  the  de- 
fensive, whereas  the  burden  of  proof  is  on  those  assailing  the 
gallows. 

It  is  well  to  reflect  that  the  Federal  Government  and  every 
state  in  the  Union  except  Kansas,  Maine,  Michigan,  Minnesota, 
Rhode  Island,  Washington  and  Wisconsin  (^Vorld  Almanac, 
1915,  page  268)  maintain  the  death  penalty.  For  treason,  death 
Is  the  universal  penalty. 

One  of  the  great  educative  and  patriotic  organizations  of 
the  United  States  is  the  Massachusetts  Civic  Alliance,  of  Bos- 
ton. The  author  is  indebted  to  the  Civic  Alliance  for  much 
valuable  assistance  in  its  compilation  of  facts.  For  many 
years  the  Alliance  has  ably  defended  the  capital-punishment 
law  wherever  It  has  been  attacked,  particularly  in  the  New 
England  States.  It  has  been  ably  represented  at  Montpelier, 
Vermont,  by  J.  Hall  Long,  Esq.,  who  is  vigilant  In  defense  of 
the  existing  law. 

In  1911  the  Vermont  Legislature  limited  the  enforcement  of 
the  death  penalty  to  cases  in  which  Juries  demanded  It.  Im- 
mediately there  was  an  epidemic  of  crimes  of  violence  through- 
out that  State.  Doctor  B.  H.  Stone,  the  State  pathologist,  re- 
corded twenty  murders  before  a  year  had  passed.  Mr.  Long 
advised  the  Civic  Alliance  of  Massachusetts  to  canvass  the 
State  and  present  the  capital-punishment  argument.  The  result 
was  that  capital-punishment  was  restored  by  a  vote  of  21  to  6 
In  the  Senate,  and  155  to  42  in  the  House.  It  would  be  well 
for  any  legislator  who  has  been  Importuned  by  the  noisy  and 
misguided  abolitionists  to  bear  the  foregoing  facts  In  mind 
before  making  any  promise  to  those  who  would  rashly  over- 
throw the  penal  code  of  the  ages,  a  code  ably  defended  by 
Daniel  Webster,  among  others,  as  free  from  the  principle  of 
Tengeance.  Bee  index  and  see  Webster's  Speeches,  VoL  I.  page 
4B6. 

151 


152  BY  RIGHT  OF  SWORD 

ABOLITION'   IS    INHUMAN. 

The  Reverend  Geo.  B.  Cheever,  D.  D.,  in  his  defense  of 
capital-punishment,  said:  "Men  do  not  wear  arms, — but  why? 
Because  of  the  solemn  assurance  that  the  government  will 
protect  life  in  the  same  way,  if  need  be,  in  which  weapons  of 
death  protect  it — because  of  the  knowledge  that  the  criminal  is 
aware,  if  he  takes  life,  that  his  own  will  be  taken." 

Now  to  take  away  this  penalty  is  in  fact  to  take  away  from 
the  community  the  means  of  self  defense.  It  is  to  make 
cowards  of  the  innocent,  but  brave  men  of  the  guilty;  for  what 
man,  for  example,  will  dare  defend  his  property,  if  a  villain  sets 
upon  it,  when  the  very  defense  may  make  the  villain  murder 
him,  you  having  taken  from  the  villain  all  fear  of  death,  no 
matter  what  he  does? 

If  a  man  breaks  into  your  house  at  night,  with  the  knowl- 
edge that  the  punishment  for  murder  is  death,  though  that 
for  house-breaking  is  not,  you  might  be  ready  to  confront  him, 
and  defend  your  property;  but  if  you  take  away  this  penalty, 
you  paralyze  your  own  arm,  and  you  nerve  that  of  the  house- 
breaker. His  life  is  safe,  while  the  taking  of  yours  is  perhaps 
necessary  to  iiis  success. 

To  abolish  this  penalty  w^ould  therefore  be  gross  injustice 
and  inhumanity  both  to  the  innocent  -wluo  are  murdered,  and  to 
tlie  innocent  living'.  It  is  in  fact  a  premium  on  murder  as  the 
safest  of  crimes.  If  you  commit  any  lower  crime,  you  may  be 
punished  for  it  too  much.  If  you  commit  this  crime,  you  are 
sure  of  a  punishment  less  than  the  evil  you  inflict  upon  others. 
The  glaring  injustice  and  inhumanity  of  such  an  arrangement 
are  perfectly  obvious. 

A  NEW  ENGLAND  COMPARISON. 

The  State  of  Maine  abolished  capital  punishment  in  1887 
and  there  is  to-day  a  larger  percentage  of  murder  in  Maine  than 
in  any  New  England  State   where  capital-punishment  remains. 

Bhcde  Island  abolished  capital-punishment  twice  as  many 
years  ago  as  did  Maine,  and  has  a  two-fold  worse  showing  in 
comparison  with  the  four  other  states  of  New  England. 

The  Twelfth  U.  S.  Census  shows  that  the  two  New  England 
States  which  have  discarded  capital-punishment  have  173  per 
cent  more  murders  than  the  four  states  which  are  under  the 
law. 

From  pages  572  and  573  of  Vol  3  Vital  Statistics,  12th  U.  S. 
Census,  the  following  percentages  are  tabulated  on  the  basis  of 
100.000  population. 

77%  more  murders  in  Maine  than  In  Massachusetts. 
92%  more  murders  in  Maine  than  in  Vei'mont. 

109%  more  murders  in  Maine  than  in  Connecticut. 
^360%  more  murders  In  Maine  than  in  New  Hampshire. 

173%  more  murders  in  Maine  and  Rhode  Island  than  in  Ma»- 
sachusetts,  Vermont,  Connecticut  and  Bievr  Hampsiilre. 

1S4%  more  mardem  in  Rhode  Island  than  Massachusetts. 


A  DEFENSE  OF  CAPITAL-PUNISHMENT    153 

175%  more  marders  In  Rhode  Island  thnn  In  Vermont. 
200%  more  murders  In  Rhode  Island  than  in  Connecticnt. 
560%  more  murders  In  Rhode  Island  than  in  Nevr  Hampshire* 

And  In  the  District  of  Columbia,  where  juries  are  em- 
powered to  return  verdicts  qualified  by  the  words  "without 
capital-punishment"  there  are  over  500%  more  murders  than 
In  Massachusetts. 

Thus  the  U.  S.  Census  has  conclusively  demonstrated  that 
the  weakening:  of  the  death  penalty  in  civilized  states  is  a  re- 
turn to  barbarism.  Jt  sustains  the  consistent  attitude  of  the 
Massachusetts  Civic  Alliance  which  for  fifteen  years  has  been 
the  pioneer  organization  defending  our  capital-punishment 
laws  in  Massachusetts  and  other  states. 

RESULTS  OF  ABOLITION. 

It  would  seem  that  the  enemies  of  capital-punishment  w^ould 
point  with  pride  to  the  states  which  have  thrown  off  the  stern 
mandate.  This  they  fail  to  do;  for  in  every  such  state  crimes 
and  murders  have  greatly  Increased  in  number  and  in  violence. 

Murder  in  Michigan  increased  from  16  in  six  years  prior  to 
abolition  of  hanging  to  152  in  the  same  period  after  forty  years 
of  abolition — ^S»500  per  cent  Increase. 

Murder  in  Maine  increased  from  an  average  of  two  con- 
victions for  murder  each  year  to  18  murders  In  190S. 

Murder  in  Iowa  increased  very  rapidly,  from  1872  to  1876, 
until,  for  this  reason,  the  death  penalty  warn  restored. 

Murder  in  Vermont  increased  from  4  or  6  to  20  the  first 
year  (1911),  until  a  jury  exercised  the  law's  option  and  sent 
Blroy  Kent  to  the  gallows.  From  that  moment  the  wave  ol 
▼iolent  crime  was  stayed. 

Murder  in  Rhode  Island  increased,  and  violence  within  the 
state  prison  became  so  serious  that  capital-punishment  was 
restored  in  1882  for  murder  committed  inside  that  institution. 

Murder  in  France  increased  68  per  cent,  in  consequence  of 
which  the  guillotine  was  restored   in   1909. 

Murder  in  Austria  increased  and  the  punishment  was  re- 
stored in  1795. 

Murder  in  eight  German  states  Increased  and  the  law  was 
re-established    for  all   in    1872. 

Murder  in  Switzerland  increased  and  in  1879  a  return  to 
the  law  was  authorized  and  10  cantons  have  been  coming 
back,  wiser  though  sadder  for  the  experience. 

Murder  in  Italy  Increased  until  It  became  a  business,  as 
brought  out  in  the  Camorrist's  trials.  In  1910  there  were  8,807 
murder  trials. 

In  Colorado  abolition  resulted  In  lynch  law.  Why  was  the 
death  penalty  restored  in  Colorado?  Because  of  the  burning 
of  a  murderer  at  the  stake  at  Limon.  Nov.  16.  1900,  by  the  out- 
raged public.  The  murderer  had  brutally  slain  a  little  girl — 
one  of  those  fiendish  crimes  that  often  shock  the  world.  The 
outrased  public  felt  that  the  sround  cric4  for  the  murderer's 


154  BY  RIGHT  OF  SWORD 

blood*  as  of  old;  so  coal  oil  was  poured  over  the  wretch's  body, 
the  father  of  the  murdered  girl  applied  the  match,  and  the 
policy  of  mistaken  lenity  was  thwarted.  Two  or  three  similar 
lynchings  brought  the  law-makers  to  their  senses,  and  the 
ancient  and  sensible  law  of  the  land  was  restored,  since  which 
law  and  order  have  characterized  the  conduct  of  the  masses. 

Colorado's  troubles  began  in  1889,  Trhen  the  abolltioniata 
iwere  In  power.  The  people  simply  would  not  consent  to  feed 
and  maintain  in  comfort  the  slayers  of  those  near  and  dear  to 
them. 

"Why  then,  in  the  face  of  world-wide  experience,"  asks  the 
Civic  Alliance,  "return  to  the  errors  of  the  ninetenth  century?" 

As  the  Coloradans  rebelled  against  the  fads  and  follies  of 
the  Legislature  of  1889,  denoancins  the  policy  that  would  feed, 
clothe,  house,  parole  and  pardon  murderers,  and  restored  the 
old  capital-punishment  law  (in  1901),  so  manly  men  every- 
where would  do  under  similar  circumstances. 

The  following  further  facts,  summarized  by  the  Massachu- 
setts  Civic   Alliance,    are   worth   careful   consideration: 

Human  nature,  unfortunately,  is  capable  of  committing  mur- 
der. In  lawless  places,  men  carry  defensive  weapons,  but  where 
life  is  protected  by  law,  the  weapons  are  laid  aside,  because 
the  protection  of  the  state  is  depended  upon. 

This  protection  is  in  capital-punishment,  which  is  a  warn- 
ing to  the  people  that  If  they  should  murder  they  must  aufler 
the  punishment  of  death. 

The  result  Is  that  men  respect  the  lives  of  others  as  they 
do  their  own.  Bodily  injury  and  death  constitute  the  only  fear 
some  brutes  can  feel. 

The  thousands  who  are  deterred  by  this  fear  of  the  threat 
of  death  do  not  usually  acknowledge  it,  therefore  some  say 
that  none  are  deterred.  In  Massachusetts  a  certain  man  said 
to  Senator  Gideon  B.  Abbott:  "I  Intended  to  murder,  but 
thought  of  the  death  penalty  and  X  mroB  deterred  by  it  from 
becoming:  a  murderer." 

The  first  popular  vote  on  this  issue,  in  the  history  of  the 
world,  was  taken  September  3,  1912,  in  the  State  of  Ohio,  when 
302,246  voters  declared  in  favor  of  the  death  penalty — which 
was  a  majority  of  43,540.  (Official  figures  by  S.  M.  Johnson, 
State  Statistician,  Columbus,  O.) 

Crime  will  increase  when  murder  shall  be  punished  by  im- 
prisonment during  life.  What  deterrent  penalty  will  robbers 
fear  to  prevent  their  murdering  when  committing  a  crime? 
None.  What  added  punishment  will  long  term  prisoners  fear 
to  prevent  their  murdering  their  keepers,  to  escape?  None. 
Rhode  Island  vrlthout  capltal-punlslunent  for  the  i»eople  felt 
obliged  to  return  to  it  for  their  prisons  in  1882. 

Fear  of  executing  the  innocent  is  not  supported  by  facts. 
Maine  voted  to  abolish  on  the  popular  notion  that  the  executed 
murderer,  Wagner,  was  innocent,  but  there  Is  extant  a  letter 
from  Clerk  Emmons  of  the  court,  that  the  murderer's  attorney 
had  told  him  that  Wagner  was  "guilty  as  the  dsTiL" 


A  DEFENSE  OF  CAPITAL-PUNISHMENT    155 

Right  of  the  state  to  take  life  Is  questioned,  but  who 
denies  that  individuals  have  the  right  to  take  life,  if  necessary, 
in  self  defense?    If  one  penon,  mnch  more  thie  state! 

It  is  not  vengeance  to  hold  back  the  wrong-doer,  through 
threatening  evil  to  him,  "for  It  is  the  only  way  we  have  to 
save  our  lives."  said  Attorney  General  James  M.  Swift,  of 
Massachusetts. 

Words  of  Scripture  have  been  cast  at  this  law,  but  capital- 
punishment  is  not  the  "eye  for  eye"  or  the  "tooth  for  tooth" 
referred  to  in  the  Sermon  on  the  Mount.  It  is  the  "life  for  life" 
Judgment  of  the  passage,  "Whosoever  shall  kill  shall  be  In 
danger  of  the  judgment,"  Matt.  v.  21.  "He  that  killeth  with 
the  sword  must  be  killed  with  the  sword,"  Rev.  xiil,  10. 

It  is  called  Mosaic  by  those  who  try  to  limit  it  as  binding 
only  on  a  past  nation;  but  its  origin  preceded  Moses  by  a 
thousand  years.  Noah,  the  father  of  all  nations,  received  from 
God  the  command,  "Whoso  sheddeth  man's  blood,  by  man  shall 
his  blood  be  shed."  Gen.  9;  5,  and  all  enlightened  nations, 
through  the  centuries  have  protected  human  life  by  placing 
this  mandate  nm  the  key  of  tlie  arch  of  their  code*  of  law.  Is 
such  a  law  a  relic  of  barbarism?     It  is  not. 

Italy  in  1888  abolished  it  forever,  and  the  Camorrlsta* 
crimes  and  3,807  homicides  in  1908  among  one-third  as  many 
people  as  the  United  States  (besides  the  large  number  of  mur- 
ders in  America  by  Italians),  rank  her  at  the  head  of  the  list 
of  murderous  countries. 

London,  on  the  other  hand,  'with  aeven  and  a  half  mllUoB 
popalatlon,  had  only  13  murders  In  1010,  of  which  two-thirds, 
namely  8,  were  hanged,  and  last  year  only  11  murders.  Shall 
we  follow  Italy?    Vote  no!  j 

some:  eminent  men's  views.     / 

U.  S.  Attorney  General  Bonaparte  said:  "During  the  last 
two  months  I  have  seen  published  allegations  to  the  effect  that 
public  opinion  condemns  capital-punishment.  I  consider  these 
allegations  wholly  erroneous.  What  Is  mistaken  for  public 
opinion  in  this  instance  is  a  sensational  repnamance  to  capital 
■entencesi.  and  indeed  to  any  form  of  punishment  involving 
physical  pain,  which,  fortunately  for  our  country  is  shared  by 
very  few  Americans." — The  Boston  Advertiser,  November  21, 
1907.  . 

SANCTITY    OP    HUMAN    LIFE.  \^ 

The  Honorable  John  Stuart  Mill,  in  the  House  of  Commons, 
April  21,  1868,  said:  "Does  fining  a  criminal  show  want  of 
respect  for  personal  property?  or  imprisoning  him  show  want 
of  respect  for  personal  freedom?  Just  as  unreasonable  is  It  to 
think  that  to  take  the  life  of  a  man  who  has  taken  that  of 
another  is  to  show  want  of  regard  for  human  life. 

"We  show,  on  the  contrary,  most  emphatically,  our  regard 
for  human  life  by  the  adoption  of  a  rule  that  he  who  violates 
that  rtcht  In  another  forfeits  It   for   himself,  and   that,  while 


156  BY  RIGHT  OF  SWORD 

no  other  crime  that  he  can  commit  deprives  him  of  his  right  to 

Jive,   this  shall."    i 

r  Mr.  Justice  Harlan  of  the  U.  S.  Supreme  Court  said:     "I  am 

'    of  the  opinion  that  capital-punishment  is  proper  in  aggravated 

/     cases   of   murder.      If  the  fear  of  ponicilunent   In  that  mode  la 

'      reniiOTed,  the  number  of  mnrderera  -will  larsreljr  Increase.     The 

hand  of  the  murderer  is  often  stayed  by  the  conviction  that  he 

may   be   hanged   if  he   take  the   life   of   another  without   legal 

justification." 

Mr.  Justice  Bradley  of  the  same  court  said:  "As  a  deterrent 
of  crime,  I  think  the  apprehension  of  the  penalty  of  death  is 
''  much  more  effective  than  that  of  imprisonment;  and  the  pan- 
Ishment  of  death  for  murder  is  a  righteous  vindication  of  Jus- 
tice, sanctioned  by  the  venerable  laws  given  to  the  father  of 
the   human   race." 

Dr.  H.  A.  Hughes,  a  strong  supporter  of  capital-punishment 
in  Arizona,  v^here  the  lavkr  was  retained  by  the  votes  of  men 
and  women  at  the  polls  in  November,  1914,  says: 

"The  hope  of  reward  will  stir  the  souls  of  many  people  to 
good  deeds,  but  shall  we  be  so  narrow-minded  as  to  lose  sight 
of  the  other  part  of  the  same  law,  the  fear  of  punislunent? 
During  the  first  year  of  the  reign  of  Queen  Victoria  there 
were  four  attempts  on  her  life,  and  some  of  the  assailants  were 
tried  for  insanity.  Parliament  met  and  passed  an  act  providing 
for  the  speedy  execution  of  any  who  attempted  to  take  the  life 
of  the  queen,  and  from  that  time  to  the  day  of  her  death  no 
one  made  an  attack  on  her." 

He  that  killeth  with  the  sword  must  be  killed  with  the 
Bword. — John. 

If  I  have  committed  anything  worthy  of  death,  I  refuse  not 
to  die. — Paul. 

Think  not  that  I  am  come  to  destroy  the  law. — Jesus. 

He  (the  ruler)   beareth  not  the  sword  in  vain. — Paul. 

The  land  cannot  be  cleansed  of  the  blood  that  is  shed 
therein,  but  by  the  blood  of  him  that  shed  it. — ^Moses. 

Whoso  sheddeth  man's  blood,  by  man  shall  his  blood  bo 
shed;  for  in  the  image  of  Grod  made  He  man. — ^Noah. 


A  Final  Appeal 


\ 


In  concluding  this  discussion,  the  author  desires 
to  appeal  to  the  reader  to  do  all  in  his  power,  if  he 
agrees  with  the  conclusions  so  often  presented  through- 
out this  volume,  to  oppose  the  movement  to  preserve 
murderers  and  feed  them  at  public  expense.  Address 
the  American  Law  and  Order  League,  San  Francisco, 
or  the  author,  in  care  of  the  Baker  &  Taylor  Co.,  New 
York  City,  for  further  particulars.  Such  mail  will  be 
forwarded  to  him.  Finally,  to  refresh  your  memory, 
suppose  we  reiterate  the  following  facts: 

There  has  never  been  a  time  when  there  were  so  \ 
many  brutal  murders  throughout  the  United  States  j 
as  now. 

There  has  never  been  a  time  when  the  fiend  who 
reddens  his  hand  with  human  blood  was  so  safe,  so 
free  from  punishment  as  now. 

There  has  never  been  a  time  when  brutal  assassins 
had  so  many  protectors  and  apologists  pleading  for 
their  lives  as  now. 

Never  before  in  American  history  have  anarchists, 
yellow  editors,  weak  politicians,  and  a  few  misguided 
ministers  of  Christian  churches  joined  hands  so  close- 
ly as  now  in  a  movement  to  overthrow  the  wisdom  of 
the  ages,  the  ancient  law  that  demands  that  the  cold- 
blooded and  deliberate  destroyer  of  human  life,  shall 
himself  be  destroyed. 

157 


158  BY  RIGHT  OF  SWORD 

Never  before  have  National  societies  been  go  well 
organized  and  supplied  with  writers  and  speakers  to 
plead  for  the  comfort  and  safety  of  murderers  as  now ; 
to  demand  that  they  be  fed,  clothed,  protected,  and 
entertained  at  public  expense. 

Never  before  have  the  Cains  of  the  United  States 
been  so  carefully  aided  and  abetted  by  men  and  women 
who  seek  to  supply  them  with  cadet  uniforms,  enter- 
tain them  with  musical  concerts,  and  burden  the  public 
with  taxes  for  their  maintenance,  as  now. 

Never  has  there  been  a  time  when  there  was  such  a 
concerted  and  hysterical  effort  as  now  to  turn  the  cells 
of  assassins  into  comfortable  homes — to  furnish  a  clean 
bed,  a  tight  roof,  and  the  luxuries  of  life,  at  public  ex- 
pense, to  those  who  have  brutally  slain  their  fellow 
men. 

Never  has  there  been  a  time  when  the  new  cult  that 
pleads  for  painless  punishment  has  been  so  insistent 
as  now  in  its  cry  that  the  murderer's  life  is  too  sacred 
to  be  taken  by  judicial  process. 

Never  has  there  been  a  time  when  impracticable 
theorists  have  so  diligently  prescribed  soft,  angelic 
codes  for  the  depraved,  as  now — in  spite  of  the  fact 
that  it  would  be  as  easy  to  survive  unarmed  in  the  can- 
nibal islands  as  to  prosper  in  a  land  where  murderers 
are  tenderly  maintained  in  prison-homes.  / 

Notwithstanding  these  facts,  nobody  on  this  earth 
has  ever  discovered  anything  to  take  the  place  of  the 
death  penalty;  for  the  blood  of  the  murderer's  vic- 
tim still  cries  to  heaven,  as  of  old.  The  ancient  sacri- 
fice, hallowed  by  bibles  and  creeds,  upheld  by  statesmen 
and  philosophers,  is  the  only  rational  answer  to  those 
who  destroy  human  life,  either  by  bludgeon  and  secret 


A  DEFENSE  OF  CAPITAL-PUNISHMENT   159 

poison,  or  by  stabbing  and  garroting  their  victims  in 
secret  places. 

Do  you  believe  in  swift  and  certain  punishment  for 
crimes  of  bloody  violence? 

Do  you  want  to  protest  against  the  sentimentalists 
who  are  trying  to  abolish  the  death  penalty? 

Do  you  want  to  help  those  who  would  rid  the  land 
of  murderers?  If  you  do,  read  on,  then  get  By  Right 
of  Sword. 

In  Chicago,  headquarters  of  the  Anti-capital-pun- 
ishment  Society  of  the  United  States,  there  were  262 
murders  in  1914 — population  2  1-3  millions. 

In  London,  where  the  hemp  speedily  follows  the  mur- 
der, there  were  only  36  murders  in  1914 — population 
almost  six  millions.  See  World  Almanac  for  1915,  page 
268. 

Anti-capital-punishment  Rhode  Island  had  560  per 
cent  more  murders  than  New  Hampshire,  which  hangs 
her  assassins.  See  vol.  3,  page  573  Twelfth  Census  of 
the  United  States. 

What  lesson  do, you  draw  from  these  facts?  How 
many  innocent  men,  women  and  children  were  slain 
because  we  Americans  do  not  employ  the  swift  and 
certain  death  penalty  that  characterizes  England? 

You  can  help  to  save  human  life  by  opposing  the 
Anti-capital-punishment  craze,  which  is  inducing  mis- 
guided sentimentalists  to  plead  for  the  sacred  lives  of 
those  wild  beasts  of  men  who  are  murdering  their  vic- 
tims with  increased  activity  and  assurance  of  safety 
and  comfort,  in  expensive  and  luxurious  prison-homes. 

Those  who  would  solemnly  and  lawfully  end  the  lives 
of  a  few  vicious  members  of  society,  to  prevent  their 


160  BY  RIGHT  OF  SWORD 

class  from  ending  many  innocent  lives,  are  even  kinder 
and  gentler  than  the  misguided  sentimentalists  who 
tremble  at  the  thought  of  capital-punishment.  But  the 
stem  logic  of  events,  the  demands  of  Retributive  Jus- 
tice, the  terrible  judgments  of  righteousness,  must  be 
executed  by  the  Avenging  Angel,  as  a  terror  to  evil- 
doers; "for  he  is  the  minister  of  God  to  thee  for 
good" — a  revenger  to  execute  wrath  upon  the  wicked. 


INDEX 


Absolute  rights   67 

Absolute  morality  not  practical 64 

Aggressions  of  criminals,  Spencer  on 93 

Alcalde's   views   on   stealing 85 

Ancient  man,  our  debt  to  him 96 

Angelic    codes    ridiculous 57  and  64 

Antiquity  of  death   penalty 34  and  120 

A   priori   and   a   posteriori    conceptions 64  and  66 

Aristotle  on  morality  and  law 63 

Aristotle    on    death    penalty 105 

Assassinations  increase  In  Italy 68 

Atrocious    murders   increase 133 

Barbarians,   gifts   of,   to  mankind 95  and  96 

Barry,  the  Rev.   Father,  quoted 143  and  144 

Beheadings  and  burnings  were  proper 68 

Belew   slays   relations 107 

Blood   pollutes  land 105 

Bonaparte,    Attorney-general,    for    hanging 155 

Bradley,   Justice,   favors  death   penalty 156 

Brutality    invites    punishment 115 

Burden  of  proof  on  abolitionists 104 

Burroughs  on   ancient   man 96  and  97 

Cadet  uniforms  for  convicts 26  and  27 

Caesar,  Paul  would  face Ill 

Cannibals    and    non-resistance 38 

Cannibals  and  the  law  of  love 66 

Cannibals  do  not  pive  birth  to  fruitarians 65 

Carlyle  on  impossibility  of  reform 90 

Carter  on  payment  or  compounding  for  murder 32 

Catholics   for  the  gallows 99 

Causation  theory  or  ethics 63 

Census    on    murders 153 

Chandler,  Rev.  C.  H.  L.,  sensible  views  of 127 

Chaplain  Cotton  on  condemned  men 116 

Character  the  source  of  crime 89 

Character  of  man  has  not  advanced 45 

Cheever  on   Bible   authority 99 

Cheever  on  bearing  arms 162 

Christ  abrogated   no  old   laws 48 

Christ  came  not  to  destroy  law 119 

Christ's  reward  for  the  law  of  love 61 

Christian  opposition  to  war 60 

Christians  join  army  and   become  crusaders 62 

Christians  hanged  for  refusing  to  Join  army 62 

Christians,    failure    of    early 58  and  60 

Churcl\es,  how  law  of  love  would  kill 58 

Civilization's  failures 43 

Civilized    punishment,    Spencer   on 94 

Colorado,  increase  of  murders  in 52  and  56 

Colorado   restores  gallows 153 

Commentators'    views    123 

Compromise  between  the  ideal  and  the  practical  essential...   67 

Conscience,  men  without 72 

Condemned  men,  conversion  of 116 

Cornell    professor    for   death    penalty 189 

Cost  of  crime  In  United  States 86 

Crimes  of  civilization 44 

Crime  offends  Ood    82 


162  BY  RIGHT  OF  SWORD 

Crime,  statistics   of 86  and  140 

Criminals,    accountability    of 80  and  81 

Criminals   cannot   be    reformed 89  and  90 

Criminals,   number  of,   in  IT.   S 8« 

Criminals,  number  of,  in  prisons  in  U.  S 86 

Criminals,    two-thirds  of,   are  recidivists 86 

Crippen  case  discussed 143 

David   wanted  murder  avenged 119 

Death   penalty   and   Moses 108 

Death    penalty    Biblically    commanded 109  and  117 

Death  penalty  demanded  by  Spencer 68 

Death  penalty  re-enacted  1:^00  years  after  Noah 118 

Death  penalty,  why  not  vindictive,   but  vindicative?.  ...  120,  121 

Deatli,   the   king   of  terrors 39,  56,  138 

Death    reforms    criminals 52  and  116 

Decrease  of  crime   not  caused  by   lenity 75 

Deterrence  as  an  object  of  punishment 84 

Deterrence    by    gallows    74  and  75 

Elimination    justified    by    McConnell 81 

Eliot,  C.  W.,  on  environment 12  and  13 

Emerson    on    fate 89 

Emerson's  views  on  whining   love 38 

Encyclopedias   for   death    penalty 51,  54,   56 

England    an    object-lesson 134  and  142 

Equitable  treatment  of  murderers  impracticable 68 

Erasmus    quoted   110 

Ethics,    basis   of 62 

Ethical    law   justifies   killing   the    innocent 74 

Euclid  not  improved  upon 44 

Expendiency    justified    67 

Expiation   considered    77 

Fate,   Emerson   on 89 

Fear  a  deterrent 89 

Fear  a  useful  thing 39 

Ferrucius   opposes  war    60 

Ford,  the  Kev.  Father,  views  of 75  and  101 

Force   justified    94 

Frequency  of  crime  invites  severity 55 

Gallows  attacked  on  four  grounds 73 

Gallows    not    barbaric 31 

Gallows    only    argument • 70 

Gallows   favored    by   Carlyle   and   philosophers 139 

Genesis    construed     117 

Governments    would   die    under    law    of   love 58 

Governors   for   death   penalty 130 

Graduates,     advice    to 14 

Great  Britain's  few  murders 40 

Greeks  on  death  penalty 124  and  125 

Grotius    on    ancient    crimes 114 

Hangings   decrease    crime    41 

Harlan,    Justice,   for   death   penaity 156 

Harshness    becomes    a    duty 56 

Kobbes  on  morality  and  law 63 

Homer   on    Barbarian    gifts 96 

Howe,  E.  W..  for  hanging 29 

Hughes,  Dr.  H.  A.,  sound  views  of 128 

Human  experience  a  powerful  factor 95 

Human  motives  unchanging 25 

Inadequate    punishment    fails 63 

Intuitionist    school    63 

Idealist  in  trouble  among  cannibals 66 

Imprisonment   makes   maniacs 53 

Indignation    appeased    by    retribution 83 

Ingram    defends    gallows 139,140,141 

Inrtiction    of    pain   justified 64  and  67 

Injustice  of  taxing  public  to   feed  prisoners 93 

Innocent  persons  may  be  justly  killed,  when 74 

Jesus  did  not  abrograte  death  penalty 47,  110 

Jurist    on    sentimentalism 9 


A  DEFENSE  OF  CAPITAL-PUNISHMENT  163 

Kent  for  gallows 37 

King  David  tor  punishment.... 119 

Kingsley   for   the  gallows 43 

Koran  on  death  penalty ^ 126 

Law  of  love  in  the  extreme 61 

Law  of  love  would  kill  churches 58 

Law  stands  while  reasoh  remains 118 

Least    wrong   is    right 69 

Legal   control  justilied 64  and  67 

"Legalized  murder"  cry  a  fallacy 49 

Lenity  invites   murder 5,  6  and  147 

Liberty  a  child  of  force 59 

Life  a  gift  of  God;  so  is  freedom 55 

Life   for   life   not   vindictive 120 

Life  the  supreme  end 69 

Life,  when  not  sacred 30 

Love  of  life,  murderer's  view  of 71 

Love,  see  also  law  of  love 58  and  60 

Lombroso  for  death  penalty 6,  143,  144,  145,  146 

Lombroso's    theories    refuted 51,  143  to  146 

Luchessi's  murders   5,  147 

Man-eating    beast    argument    34 

Massachusetts  Civic  Alliance  for  death   penalty 151 

Matthew  for   the  death   penalty 155 

Maudsley  on  depravity  of  murderers 53 

McConnell  favors  death    81 

McConnell  on   aims   of   punishment 77,78,79 

McConnell,  professor,    for    capital-punishment 22 

McGilvary,  the  reverend,  favors  gallows 139 

McNamara   murderers   confess 135 

Minnesota    laws    too    mild 130 

Minnesota    needs    gallows 6 

Moral  philosopher   favors  gallows 139 

Moral  progress  a  fallacy 43 

Moral  sense   demands  punishment 115 

Morality,   basis  of 62 

Morality    defined    58 

Morgan  on  ancient  society 95 

Moses    on    death    penalty 108 

Moses,  Solon  and  Plato,  knew  more  than  abolitionists 44 

Murder    defined     49 

Murder,  law  against  mandatory 109 

Murders  Increase  In  France 52  and  56 

Murderer's   argument    unanswerable 70 

Murderer,    author    tells    of   one 107 

Alurderer  burnt  at  stake 153 

Murderers   clothed   and   fed 120 

Munsterberg    on    hysteria 9 

Noah  assured   by  Gfod 112 

Non-resistance   Is  pure   folly 68  and  60 

New  England,  murders  In 152 

Newspapers,  sensational,  oppose  capital-punishment 151 

New  Testament  rests  on  old 105  and  106 

Nietzsche  on    punishment   and    reform 90 

Ohio   votes    for    gallows 154 

Old   laws   of   Bible   kind 108 

Old     Testament    Justified 105 

Pain  and   poena,  meaning  of 104 

Pain,  Infliction  of.  Justified 64  and  67 

Painless    punishment    is    folly 64 

Paul's  case  an  unanswerable  argument Ill,  112,  119 

Paul  appeals    to   Caesar Ill 

Paul    before    Festus lOSandlH 

Penalties,  extreme,   not   contrary  to  morals 65 

Penalty,    adequate    demanded 1 05 

Penologists    for    death    penalty 131 

Philosophy    of    punishment 77  and  79 

Plato  on   morality   and   law 6.1 

Post   hoc   argument   vicious 7ft 


164  BY  RIGHT  OF  SWORD 

Precaution     diminishes     crime 76 

Prisons    are    iiotbeds    of    crime 14ft 

Prisoners   must   suffer 6a 

Punishment  analyzed  by  Spencer 57 

Punishment    a    complex    growth 79 

Punishment    is    social    therapeutics 81  and  115 

Punishment,  philosophy  of 77  and  79 

Punishment,    the  aims   of 77.  78,  79 

Punishments,    vivid    required 67 

Recidivist    examples 147 

Recidivists    numerous    i   53 

Reformation  as  an  object  of  punishment 87 

Reformation   theory   a  failure 89 

Relative  morality  the  only  practical  guide 64 

Relative    rights    67 

Removal  of  murderer  justified  69 

Restoration   of  life  fallacy 35 

Retribution    77,    82 

Retributive   justice   analyzed    82 

Rhode  Island  as  murderers'  paradise 153 

Rickaby  for  death  penalty 100 

Ricard,  the  Rev.  J.  S.,  for  gallows 47 

Roman  Catholic  savant  favors  gallows 47,  99 

Schlegel   on  Moses    108 

Scoundrels  always   remain   such 90 

Schopenhauer    on    character 89 

Sermon  on  Mount  foreshadowed 109 

Shall  in  God's  command   Imperative , ...  .117 

Slaying   men   not   essentially   wrong 102 

Social   self-preservation   supreme 63 

Social    utility,    demands    of 81 

South  Sea  murder,  supposed  case  of 83 

Spencer,   Herbert,  for  capital-punishment 22 

Spencer  on  crime  and  laws  of  life 91  and  9'3 

Spencer  on   ethics di 

Spencer   on    negative    statistics 74 

Spencer  on  the  criminal's  just  deserts 92 

Spencer  required  vivid  punishments 67 

Spido's  murder    6 

Spitzka  on   murders 147 

Stephen,  Sir  Leslie,  for  capital-punishment 22,  25  and  70 

Stephen  on  Love  of  Life    71 

Stephen   on    murderer's    argument 70 

Stephen  on  social  utility 90  and  91 

Stephen    on   fear    71. 

Sublimated  views  forsaken  by  Christians  after  failure 61 

Superhuman    codes    nonsensical 60 

Sword-bearing  meant  death  only a'^Jq 

Sword    not    borne    in    vain 111,113,119 

Taft,  W.  H.,  for  death  penalty 23 

Taxes  for  criminals  rob  society 93 

Thomas    Aquinas    quoted    V  •  *  *  V  J5n 

Thou  Shalt  not  kill.  Rev.  Father  Ford  on 101  and  102 

Tolstoy's    extreme    views •  •  •  •  •    °i 

Tolstoy    on   law   of   love "'*^"i5S 

United  Kingdom,  decrease  of  murders  In x:'A''}ia 

Universality   of  death  penalty 94,  9o,  1^6 

Utilitarian   theory  of  ethics 6d 

Utopian   moralist   theories •    »» 

Vedic  Hymns  contain   lofty  teachings 4o 

Vendetta's   wrong jf 

Vigilance  committees  do  good  work «i 

Wallace,  Alfred  R.,  on  moral  progress  fallacy .-   4d 

Webster  and  Kent  for  death  penalty ib,  61 

White,  Andrew  D..  for  galjows ;? 

Whoso   sheddeth   a  command |^' 

Wisconsin,    life-imprisonment    fails •  • '  * '  "i   i(t 

Wrong  of  non-resistance    °°  *°"  °" 


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